josif a llc, south ave retail - b 1707/ l 1 & 5

NYSDEC Response to Public Comments for Application #2-6401-00287/00002 Josif A LLC, South Ave Retail - B 1707/ L 1 & 5

534 South Ave. Staten Island, NY 10303

I. Introduction

On April 12, 2018, Josif A LLC (the “Applicant”) submitted an application to the New York State Department of Environmental Conservation (“Department” or “NYSDEC”) for a New York State Environmental Conservation Law (NYS ECL) Article 24 Freshwater Wetlands Permit (Permit) to construct a new, commercial development located at 534 South Ave., Staten Island, Block 1707 Lots 1 and 5, within approximately 18 acres of the 28.3-acre site (the “Project”). A project requires an Article 24 Permit when the project involves regulated activities in a freshwater wetland and/or in its adjacent area. The proposed Project includes two (2) one-story retail buildings and one (1) one-story building containing three (3) retail stores, a gas station, and an automatedbank teller. The proposed Project would impact approximately 0.39 acres of adjacentarea next to a state regulated Class II freshwater wetland known as E-3 (Graniteville).The Applicant will be required to mitigate, enhance, and preserve 10.77 acres offreshwater wetland and wetland adjacent area, including wetlands buffer plantings, afreshwater wetland enhancement area, a stormwater management area and preservednatural areas.

NYSDEC’s geographic jurisdiction over the Project site is based primarily on the Freshwater Wetlands Act, NYS ECL Article 24.1 The tentative freshwater wetlands map for Staten Island, filed in 1981, did not identify freshwater wetlands on the Project site. Based on public comments, NYSDEC revised its tentative map and promulgated a final freshwater wetlands map in 1987 that showed wetlands associated with the freshwater wetland E-3 Graniteville on the Project site consisting of wet woods in the southern and eastern portion and two ponds in the northern section. Within a few weeks thereafter, the property’s owner, who had bought the parcels encompassing the Project site in 1974 and 1984, respectively, filed an appeal before the Freshwater Wetlands Appeals Board (case # 87-100), challenging the freshwater wetlands designation of the property and seeking relief under the hardship provisions of NYS ECL §24-1104. NYSDEC and the Applicant negotiated a settlement that was finalized by a stipulation in 2012 (the “2012 Stipulation”). The 2012 Stipulation established agreed-upon wetland boundaries and a tentative determination that the Project, which substantially comports with the Application and Site Plan referenced in the 2012 Stipulation, met standards for issuance of a freshwater wetlands permit. The 2012 Stipulation reserved NYSDEC’s ability to

1 The southern portion of lot 1 contains a tidal wetlands area connected to Goethals Creek and a regulated tidal wetlands adjacent area that extends 150 linear feet from the tidal wetland boundary as shown on the project plans. The Applicant will enhance a small segment of tidal wetland adjacent area, but this action is classified under Part 661 as NPN, a category for which no permit is necessary.

Response to Public Comments for Application #2-6401-00287/00002

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seek resolution of any substantive and significant issues that might be raised during the New York State Environmental Quality Review Act (SEQRA) process. NYSDEC is bound by the 2012 Stipulation to issue a permit for the proposed Project so long as the SEQRA process or public review does not raise substantive and significant issues concerning the permissibility of the Project.

On August 26, 2016, New York City Department of City Planning (NYC DCP)

assumed Lead Agency status for the proposed Project and initiated New York City Environmental Quality Review (CEQR) for the Project, which is legally consistent with and authorized under SEQRA. On August 26, 2016, NYC DCP solicited participation from the following agencies: NYSDEC, New York City Planning Commissioner (NYCPC), New York City Department of Environmental Protection (NYC DEP), New York City Landmarks Preservation Commission, New York City Department of Parks and Recreation (NYC DPR), New York City Department of Transportation, New York City Department of Housing, and New York City School Construction Authority. Only NYSDEC and NYCPC agreed to act as involved agencies for the purposes of environmental quality review.

Also, on August 26, 2016, NYC DCP issued an Environmental Assessment

Statement that determined the proposed Project could have the potential to result in significant adverse environmental impacts and issued a Positive Declaration and a draft Scope of Work to establish the type and extent of the environmental impact analyses to be studied in the Environmental Impact Statement (EIS). On September 27, 2016, NYC DCP held a public scoping meeting near the proposed Project site at 970 Richmond Avenue, Staten Island, New York. NYC DCP accepted comments on the Scope of Work through October 7, 2016. On June 2, 2017, NYC DCP issued a final scope of work and a Notice of Completion of the Draft Environmental Impact Statement (DEIS). On July 26, 2017, NYC DCP held a DEIS public hearing and received written comments on the DEIS through August 7, 2017. On August 25, 2017 and because public comments did not raise any substantive or significant issues concerning the permissibility of the Project, NYC DCP issued the Notice of Completion of the Final Environmental Impact Statement (2017 FEIS), which incorporated a response to comments received during the public comment period. On September 6, 2017, NYC DCP issued the formal set of written findings reflecting that NYC DCP had taken a hard look at the environmental consequences of the proposed Project and stated that the Project would not result in any unmitigated significant adverse impacts.

On July 31, 2019, NYSDEC published a Notice of Complete Application (NOCA) for Josif A LLC’s Permit application. NYSDEC received one thousand eighty-four comments from interested parties and has reviewed, summarized, and responded to all comments within the scope of this Permit application.

Section II contains a summary of these relevant comments and a response to

each. These summaries convey the substance of the comments made, but do not necessarily quote the comments verbatim. Where more than one commenter expressed similar views, those comments have been grouped and addressed together. Section III


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addresses those comments and materials received that are considered outside the scope of the Permit application and review.

II. Comments and Responses by Category:

A. ENVIRONMENTAL REVIEW Comment 1: Numerous commenters requested that NYSDEC require that the Applicant draft a new EIS specifically for the Permit application because the 2017 FEIS referenced in NYSDEC’s NOCA presumed the wrong No Action Alternative: that this Permit application would be granted and did not consider a possible future without this Permit. Numerous commenters stated that it is impossible for the Department to use the 2017 FEIS as a basis for comparing what would happen if the wetlands Permit is granted with what would happen if it was not, as is required by SEQRA.

Response 1: SEQRA2 review need only be conducted once, prior to applying for any applicable governmental approvals. Because this action requires more than one approval from more than one agency, NYSDEC participated in a coordinated review of this action as an involved agency with the designated Lead Agency, NYC DCP, and involved agency NYCPC. As Lead Agency, NYC DCP prepared the 2017 FEIS, which analyzed the potential, site-specific impacts of the Project. The 2017 FEIS evaluated the potential for environmental impacts based on a Reasonable Worst-Case Development Scenario. Absent the proposed NYCPC discretionary land use actions (i.e., demapping and special permit approvals), the Applicant stated its intention to redevelop the Project site in conformance with the then underlying zoning and within the development footprint approved by the Department as part of the 2012 Stipulation. Both the approved Project and the No Action scenario development analyzed in the 2017 FEIS conform to the approved site plan and development footprint; both included the required wetlands mitigation and natural resource enhancements as outlined in the 2012 Stipulation. In a SEQRA analysis the impacts of an agency’s actions should be assessed by comparing a future in which the agency action, here a Permit, occurs versus a future in which the original development proceeded without the requested agency action. The Department reviewed and concurred that the No Action development would be in substantial compliance with the 2012 Stipulation. As such, the No Action development provided a reasonable and conservative assumption of what would occur on the subject property absent the proposed NYCPC approvals in the EIS. Based on the 2017 FEIS, NYC DCP concluded that the Project would not result in any unmitigated significant adverse impacts.

2 New York State Environmental Conservation Laws, Article 8. Environmental Quality Review and implementing regulation 6 NYCRR Part 617 State Environmental Quality Review.


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The Department, in its capacity as an involved agency and as a permitting authority, has reviewed the entire application including the various environmental quality review documents to ensure compliance with SEQRA, concurs with NYC DCP’s findings that the Project would not result in any significant adverse impacts, and is bound by the determinations made by Lead Agency NYC DCP.

Comment 2: The 2017 FEIS claims that there is an “agreed-to development footprint” in the Project area, and that “any development” within that footprint “is permitted to be developed” by the Department.

Response 2: The 2012 Stipulation, which was signed by the Department and the Applicant in connection with the settlement of the case before the New York State Freshwater Wetlands Appeals Board, establishes a site footprint for the Project site with the area that is permitted to be developed; any development that conforms to the agreed-to development footprint would be deemed to be in substantial compliance with the terms in the 2012 Stipulation and would be issued a permit unless the environmental review process or public review raised substantial and significant issues concerning the permissibility of the Project.

Comment 3: The Applicant prepared the NYC DCP 2017 FEIS in support of a special zoning permit and mapping amendment from the City of New York, not the current application; therefore, it is now inappropriately reusing the NYC DCP 2017 EIS to support this application.

Response 3: The Department’s reliance on the 2017 FEIS is appropriate. The 2017 FEIS includes analysis of the various environmental issues related to this Project. The Department, in its capacity as an involved agency and as a permitting authority, has reviewed the entire application including the various environmental quality review documents to ensure compliance with SEQRA, concurs with NYC DCP’s findings that the Project would not result in any unmitigated, significant adverse impacts, and is bound by the determinations made by Lead Agency NYC DCP.

Comment 4: Numerous Commenters stated that the 2017 EIS was inadequate because it was written to describe potential impacts of two specific zoning changes that the developer sought from the City Council.

Response 4: See response to comments 1 and 3. Comment 5: The 2017 FEIS presents a No Action scenario that assumes a larger footprint of development would occur without agency action, again on the false assumption that no Wetlands Permit is required for development to go forward here.

Response 5: The 2017 FEIS examines the incremental differences between the Reasonable Worst-Case Development Scenario of the future without the


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proposed action (the No Action Condition) and a future with a project in operation (the With Action Condition). Where a proposed project results in a smaller footprint, there may be a negative increment between the No Action and With Action developments. See also response to comments 1 and 2.

Comment 6: Should the Department issue a permit in reliance on the NYC DCP 2017 EIS, the public comment period for which did not start until July 2019, years after the NYC DCP 2017 EIS was drafted, it would be in clear violation of SEQRA. The application itself is flawed because by considering an inappropriate No Action scenario it provides the Department with insufficient information to make a decision as to whether granting the requested Permit “would be compatible with public health and welfare.”

Response 6: The Department’s review is not based exclusively on the 2017 FEIS and the Department has ensured that the proposed Permit will meet all Article 24 requirements, which includes compatibility with public health and welfare. See responses to comments 1 and 3.

Comment 7: The EIS makes numerous erroneous claims that render it useless in evaluating the application:

• That no socioeconomic-conditions analysis is necessary because the proposed development is smaller than the No Action condition and therefore “the proposed Project would result in a net decrease in retail space.” • That no open-space analysis is necessary because the proposed development would hire fewer workers than the No Action scenario and therefore there “would be a reduction in the worker population.” • That no analysis of the effect of shadows on the adjacent wetlands is necessary because “the shadows cast…would be substantially similar in both” the No Action and With Action scenarios. • That no urban-design analysis is necessary—even though an entirely new retail center is going up in what was once open space and wetland—because the No Action scenario would include “smaller retail buildings along the Project site’s…frontages.” • That no solid-waste analysis is necessary because “the proposed Project would result in a reduction in solid waste generation as compared to the No Action condition.” • That no climate-change analysis is necessary because the “proposed Project would result in a commercial development…approximately 2,000 gsf. smaller than the retail development that will be constructed…in the No Action condition.” • That it would be safer to allow the proposed development than not, from a


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hazardous materials perspective, because the development will occur anyways [sic] and the Applicant committed to undertaking a Remedial Action Plan and Construction Health and Safety Plan for the proposed Project. • That allowing the proposed Project would result in a decrease of the strain on water and sewage systems because it is smaller than the No Action scenario. • That the proposed Project would decrease midday traffic to the area, because more people would visit the development in the No Action scenario. • That the proposed Project would create only an “imperceptible” amount of noise, because the retail development in the No Action scenario would also be noisy. • That “the proposed Project would not have the potential to affect the land uses which are a defining feature of the area’s neighborhood character” because “it would not represent a change in land use as compared to the No Action condition.” Response 7: Acting as Lead Agency for this Project, NYC DCP conducted preliminary screening assessments of the proposed Project in the following technical areas to determine if the proposed Project would exceed any thresholds defined in the CEQR Technical Manual and would therefore warrant a detailed analysis: socioeconomic conditions; community facilities and services; open space; shadows; urban design and visual resources; solid waste and sanitation services; energy; natural resources; greenhouse gas emissions and climate change; and public health. NYC DCP’s analysis is discussed at length in Chapter 14 of the 2017 FEIS, “Screening Assessments”. These assessments found that the proposed Project did not exceed the relevant thresholds requiring further analysis. The Department, in its capacity as an involved agency and as a permitting authority, has reviewed the entire application including the various environmental quality review documents to ensure compliance with SEQRA, concurs with NYC DCP’s findings that the Project would not result in any unmitigated, significant adverse impacts, and is bound by the determinations made by Lead Agency NYC DCP. See also responses to comments 1 and 3.

Comment 8: One Commenter stated that the EIS should be prepared by an independent source and not one contracted by the Applicant.

Response 8: As Lead Agency, NYC DCP issued the 2017 FEIS for this Project. Any submissions by the Applicant to inform this process were reviewed by Lead Agency NYC DCP and Involved Agencies NYSDEC and NYCPC to ensure


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compliance with all SEQRA and CEQR requirements. Comment 9: Numerous Commenters stated that the 2017 EIS was inadequate because it failed to address potential impacts on the endangered Eastern Mud Turtle, Kinosternon subrubrum. One commenter stated that the developer’s contractor failed to place traps out at the appropriate (mating) time in order to catch the eastern mud turtle and that disturbance of this area would prove to be deadly for the mud turtle.

Response 9: In accordance with the CEQR Technical Guidelines, the EIS assessed animal species considered endangered or threatened under federal law and animal species considered endangered, threatened, or of special concern under state law. The EIS identified the historical record for the eastern mud turtle (Kinosternon subrubrum) (c. 1900) provided by the New York Natural Heritage Program (NHP). No federal or state listed wildlife species considered endangered, threatened or of special concern identified by the NHP were observed during the four-season natural resource inventory or subsequent site visits. In addition, the Department required the Applicant to provide information and verification beyond that found in the 2017 FEIS. It is not unusual for agencies to require additional information or studies to inform their permitting decisions. Here, eastern mud turtle trapping was completed at the Department’s request and done in accordance with NYSDEC-approved trapping protocols developed by NHP for two, five-day trapping sessions during the appropriate season. The trapping survey involved 24 traps during the first five-day session and 21 traps during the second session for a total of 225 trap nights. The only turtles encountered were two young snapping turtles that were trapped on the south and southwest quadrant of the Project site. No eastern mud turtles were trapped nor were any signs of turtles (e.g. eggshells from hatched or depredated nests, tracks, or carcass remains) observed. Therefore, the Department cannot expect impacts to eastern mud turtles as a result of the proposed Project.

Comment 10: The 2017 FEIS was flawed because it failed to discuss impacts to the Goethals Mobile Home Park and to the EJ community.

Response 10: Consistent with CEQR Technical Guidelines, NYC DCP considered the potential effects of the Project on land uses within a quarter-mile radius study area: the Goethals Mobile Home Park is located beyond a quarter-mile from the Project site, therefore Goethals Mobile Home Park is outside of the scope of NYC DCP’s CEQR analysis. In addition, and as discussed in the 2017 FEIS on page 18-8, the proposed Project did not entail the siting of a facility whose operations (e.g., substantial air, water, solid waste, or hazardous material pollutant discharges) could result in disproportionate burdens or impacts on communities of concern (i.e., low income or minority communities). Thus, the proposed Project did not require review under the City’s Fair Share procedure, which is the City’s consideration of Environmental Justice impacts. The


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Department, in its capacity as an involved agency and as a permitting authority, has reviewed the entire application including the various environmental quality review documents to ensure compliance with SEQRA, concurs with NYC DCP’s findings that the Project would not result in any unmitigated, significant adverse impacts, and is bound by the determinations made by Lead Agency NYC DCP. In addition, permit issuance under NYS ECL Article 24 does not require Environmental Justice review under NYSDEC Commissioner Policy 29, Environmental Justice and Permitting, (“CP-29”).

Comment 11: One commenter submitted the following documents addressing alleged deficiencies with the 2017 FEIS as appendices to her comment: a report by Fournier, Robson & Associates, LLC entitled “Review of South Avenue Retail Development FEIS from a Traffic Perspective”; “Key Challenges of the South Ave Development the BJ’s Retail Project” Opposition Testimony Prepared by an Alliance of Small Business Owners in mariner’s Harbor, October 10, 2017; A Memorandum to Gabriella Velardi Ward – Coalition for Wetlands and Forests from Ericka Naklicki, PWS Principal Environmental Scientist Re: Preliminary Wetland Investigation Graniteville Wetland Investigation, Graniteville Wetlands – Block 1707, Lots 1 and 5, Forest Avenue and South Avenue, Graniteville, Staten Island, New York. The commenter requested that NYSDEC review these documents and use them to inform this permitting action.

Response 11: The Project’s NYCPC approvals were reviewed in accordance with SEQRA, CEQR, and the Uniform Land Use Review Procedure (ULURP). This review included a period for public comment on the DEIS: all substantive comments received during the public comment period became part of the SEQRA/CEQR record and were summarized and responded to in the 2017 FEIS. As per SEQRA and CEQR requirements, the DEIS was revised to incorporate any relevant changes to the analyses and was reviewed and confirmed by the Lead and Involved Agencies. These three reports were submitted following the close of the public comment period in August of 2017 and after the FEIS was completed.

The submitted documents cover the following topics: traffic and traffic safety; petroleum bulk storage issues; community facilities and services; socioeconomic conditions; urban design and visual resources; natural resources; flooding; open space; and public health. NYSDEC has subsequently reviewed these documents and has determined that the issues raised in these documents were substantively covered by both the 2017 FEIS and the Department’s review of the Permit application. See also the response to comment 7.

Comment 12: Regulations defining federal wetlands jurisdiction under the Clean Water Act were revised in 2015 to include, on a case-by-case basis, wetlands within the 100-year floodplain like the one at issue here, per the preliminary FIRMs. Since the 2012 jurisdictional determination (JD) would expire by end of 2017, a new JD by the Army Corps of Engineers would have been necessary by the build year of the 2017 FEIS, yet


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the 2017 FEIS does not disclose that this additional discretionary action is even needed, nor that it would need to be granted or denied in the context of new regulations and updated floodplain classifications.

Response 12: This comment discusses issues that are beyond the scope of both this Permit action and the Department’s jurisdiction. However and as related to Permit application review, the Applicant has informed NYSDEC that on April 30, 2018, US Army Corps of Engineers (USACE) conducted a site inspection, where USACE determined that the project site still contained jurisdictional waters of the United States and that there had not been changes in the non-jurisdictional and jurisdiction portions of the site, in the type of vegetation cover, its soil or the hydrological regime, which would have expanded or decreased the wetland size as determined in the 2012 JD.

Comment 13: The 2017 FEIS does not account for the harm to wetlands that would occur as the result of the Project. The Project would, if allowed to be built as proposed, greatly reduce the value that the wetlands provide; permitting it would be a violation of Article 24, section 24-0105 and the Freshwater Wetlands Permit Requirements. In addition to the “stipulated” wetlands that exist in the southern area of the site, there are several wetlands areas within the site that will be destroyed for the project. These wetlands provide substantial services to the environment and surrounding community. In particular, the area designated “Wetland E” in the northwestern portion of the site was assessed as providing “medium” levels of storm protection, wildlife habitat, recreation opportunities, pollution treatment, and erosion control. Despite satisfying this array of important needs, it is not clear that the loss of this wetland, or any other, received consideration in the EIS or application.

Response 13: Impacts to regulated wetlands were considered in the EIS (see Chapter 4 of the 2017 FEIS, “Natural Resources.”) and the Department’s review of the application. The proposed Project complies with the policies and provisions of Article 24; conforms to the agreed-to development footprint deemed to be in substantial compliance with the terms of the 2012 Stipulation; and satisfies the standards for issuance of a NYSDEC Freshwater Wetlands Permit. As per the binding terms of the 2012 Stipulation, the Applicant must preserve, mitigate, and enhance 10.77 acres of freshwater wetland and wetland adjacent area in order to permanently construct on approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3. The Applicant’s mitigation and enhancement requirements are as follows:

• Two separate planting zones established within the freshwater wetland mitigation area, which will include approximately 2.76 acres of freshwater wetland buffer planting area and 2.10 acres of freshwater wetland enhancement area. These areas will cumulatively provide enhanced wetland and adjacent area values attributable to the freshwater wetland plantings including, but not limited to, flood and stormwater control,


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surface and groundwater protection, erosion control, pollution treatment and nutrient cycling, and wildlife habitat;

• A tidal wetland adjacent area enhancement area, which will provide 0.25 acres of new and enhanced tidal wetland adjacent area values attributable to the removal of invasive species (Phragmites). Benefits include, but are not limited to, wildlife habitat, storm control, and ecosystem cleansing.

• Preservation of 6.94 acres of freshwater and tidal wetlands, which includes 4.73 acres of undisturbed, undeveloped, and deed restricted natural area that is comprised of both freshwater and tidal wetland and wetland adjacent area.

Please note that some of these areas overlap and that this overlap causes the sum of these actions to exceed the 10.77 acres of wetland and wetland adjacent area to be mitigated, enhanced, and preserved. This overlap is clearly indicated by Applicant on its submitted permit application materials.

Comment 14: An EIS must not be improperly segmented so as to consider “only a part or segment of an action,” rather than the action in its entirety, and “[r]elated actions should be identified and discussed to the fullest extent possible.” The 2017 FEIS is improperly segmented, as it considers only the incremental impact of the City’s discretionary actions, and not the full impact of the proposed development or all the related actions necessary to permit it. In this case, the action requires both a wetlands permit from the Department, a zoning permit and city map amendment from the City of New York, and a JD from the Army Corps of Engineers. But the NYC DCP 2017 EIS only provided an analysis of the City’s actions. Splitting those actions from the Department’s and the Army Corps’ actions reduces the environmental impact considered to the incremental change caused by minor zoning adjustments and a slight change to the roadway leading into the proposed development. This conceals the real harm to the environment posed by the proposed project and violates the SEQRA requirement that projects be considered as a whole.

Response 14: 6 NYCRR 617.2(ah) defines segmentation as the division of the environmental review of an action so that various activities or stages are addressed as though they were independent and unrelate activities needing individual determinations of significance. Typically, segmentation occurs in the following two situations: (1) where a project sponsor attempts to avoid a thorough environmental review (often an EIS) of a whole action by splitting a project into two or more smaller projects; or (2) a project sponsor excludes activities that may be occurring at different times or places from the scope of the environmental review. The Project does not have multiple projects, phases, or locations. The 2017 FEIS discusses all required agency approvals and presents the necessary review to avoid adverse environmental impacts as related to those agency approvals. As a result, this Project resembles neither example of typical


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segmentation and NYC DCP prepared a thorough environmental review in consultation with involved agencies NYSDEC and NYCPC.

See also the responses to comments 1,2, and 3.

Comment 15: The nine-year-old build-out plan fails to qualify as an “as-of-right” development because it lacks discretionary approval for the proposed Permit. Indeed, the plan does not meet the applicable statutory requirements for such permit. The project fails two tests outlined in DEC regulations: (1) the project is incompatible with the preservation, protection and conservation of the wetlands and its benefits, and (2) the resulting wetland degradation surpasses the level of “insubstantial.” 6 N.Y.C.R.R. § 663.5(e). Accordingly, the Permit should be denied. In any event, since a discretionary permit must still be granted, the 2008 development plan should not be considered as of right, and consequently, it should not be the basis for a No-Action alternative.

Response 15: See the responses to comments 1, 2, 3, and Section I. Introduction for discussion of the 2012 Stipulation.

Comment 16: The 2017 FEIS Alternatives section relies on a single alternative -- the invalid No Action alternative discussed above. The Alternatives discussion in the EIS reads like a foregone conclusion: the only alternative is another un-built project with many of the same environmental problems as the proposed project. It fails to consider whether the state, the city, or a local land trust could acquire some or all of the project site. It fails to include any analysis of whether a smaller project that preserved more of the wetlands and forested areas could achieve some of the project sponsors objectives. It fails to examine whether a different configuration of parking, a more small-scale commercial development plan and/or a less dramatic destruction of the landscape could achieve many of the developer’s financial goals. The complete absence of a meaningful Alternatives discussion in the EIS subverts the goals of the environmental review process and does not aid decisionmakers or the public in assessing whether alternatives exist that would minimize or avoid adverse environmental effects of the proposed development.

Response 16: In a SEQRA analysis the impacts of an agency’s actions should be assessed by comparing a future in which the agency action, here a Permit, occurs versus a future in which the original development proceeded without the requested agency action. In the 2017 FEIS, NYC DCP considered a No Action scenario that includes the redevelopment of the project site with a commercial center that would be similar to the proposed project but would not require any discretionary approvals (see the responses to comments 1 and 2). In particular, the No Action development would conform to the NYSDEC-approved site plan and would include the same mitigation, preservation, and enhancement of 10.77 acres of natural areas on the project site. Therefore, effects on natural resources from the No Action Alternative would be similar to the proposed project, as they both entail site disturbance of the same development area (see Chapter 4 of the EIS, “Natural Resources”). As discussed in Chapter 12 of the 2017 FEIS,


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“Alternatives,” all significant adverse impacts identified for the proposed project would not occur with the No Action development. In accordance with CEQR Technical Manual guidance, as the proposed project would not result in any unmitigated significant adverse impacts, consideration of an alternative that would reduce or eliminate unmitigated significant adverse impacts was not warranted. Accordingly, the 2017 FEIS properly compares the proposed Project to the baseline condition that would occur if the proposed Project were not approved: construction of a commercial center that would not require any New York City discretionary approvals.

B. PERMIT PROCESS

Comment 17: Numerous commenters requested that the agency schedule a public hearing so that NYSDEC could hear directly from experts and residents who would be impacted by this permitting action. Comment 18: A public hearing would provide a useful opportunity for the developers and NYSDEC to clarify any confusion within the community and would provide a necessary forum for members of the community to voice any concerns and engage in an open dialogue.

Responses to 17 and 18: The Department’s Uniform Procedures (6 NYCRR Part 621) differentiate between two types of public hearings: adjudicatory hearings and legislative hearings. An adjudicatory hearing takes place when the department’s review or comments received from the public raise substantive and significant issues as defined in 6 NYCRR 624.4(c). An issue is substantive “if there is sufficient doubt about the Applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry.” An issue is significant “if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.” Based on a review of the application and public comments no substantive and significant issues were identified. Accordingly, an adjudicatory hearing is not warranted for this application.

The Department may hold a legislative hearing on a freshwater wetlands permit application when a significant degree of public interest exists. A legislative hearing provides an opportunity for the public to make unsworn statements, based on fact or belief, for consideration by the Department in its review of applications for permits. Comments received in written or electronic form are given the same weight as oral comments when NYSDEC is reviewing comments on a permit. After review of all comments submitted during the public comment period for this Permit action, the Department has determined that holding a legislative hearing is neither necessary nor indicated.


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The Department’s determination is based on its review of the comments, where the majority of which discussed topics that are beyond the scope of the Department’s Article 24 permitting jurisdiction. These comments are summarized here and largely note community sentiment against the specific type of commercial development and the adequacy of the 2017 FEIS, for which NYC DCP held a public hearing where at interested parties were provided an opportunity to raise any substantive issues with the DEIS. NYC DCP determined that no substantive issues were raised as part of that process, nor was the adequacy of the 2017 FEIS challenged. It is also noted that as part of the 2012 Stipulation, NYSDEC agreed to issue a freshwater wetlands permit after the completion of the SEQRA process “unless the SEQRA process or public review raise substantive and significant issues concerning the permissibility of the project.” The public review process raised no issues that meet those criteria, and the record contains sufficient information for the Department to make an informed permit decision.

Comment 19: Some commenters requested that NYSDEC extend the public comment period for an additional sixty days and conduct an administrative review of the prior activities.

Response 19: The Department provided a thirty-day comment period, which is twice the length of the statutorily-required comment period following publication of the Notice of Complete application on July 31, 2019. The written statements received for this action effectively communicate the community’s concerns and the record currently contains sufficient information for the Department to make an informed permit decision.

Comment 20: NYSDEC should fully weigh the value the Graniteville wetlands contributes to the community in its consideration of the pending Permit.

Response 20: The decision to grant an Article 24 permit is based on the Department’s determination that the proposed project meets the standards for permit issuance, which includes a consideration of the benefits freshwater wetlands provide. Those benefits include, pursuant to ECL 24-0105,

(a) flood and storm control by the hydrologic absorption and storage capacity of freshwater wetlands; (b) wildlife habitat by providing breeding, nesting, and feeding grounds and cover for many forms of wildlife, wildfowl and shorebirds, including migratory wildfowl and rare species such as the bald eagle and osprey; (c) protection of subsurface water resources and provision of valuable


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watersheds and recharging ground water supplies; (d) recreation by providing areas for hunting, fishing, boating, hiking, bird watching, photography, camping and other uses; (e) pollution treatment by serving as biological and chemical oxidation basins; (f) erosion control by serving as sedimentation areas and filtering basins, absorbing silt, and organic matter and protecting channels and harbors; (g) education and scientific research by providing readily accessible outdoor bio-physical laboratories, living classrooms, and vast training and education resources; (h) open space and aesthetic appreciation by providing often the only remaining open areas along crowded river fronts and coastal Great Lakes regions; and (i) sources of nutrients in freshwater food cycles and nursery grounds and sanctuaries for freshwater fish.

The Project will not have a significant impact on the benefits provided by the freshwater wetland.

Comment 21: While the New York City Council, City Planning and the Mayor’s office have encouraged and approved this development project, this project is only going forward because of NYSDEC’s arcane wetland rules and regulations.

Response 21: Comment noted. Comment 22: NYC DPR does not believe the Applicant has provided adequate environmental protection of this unique area of Staten Island.

Response 22: As per NYC DCP’s August 26, 2016 Notice of Lead Agency Determination and Review Letter, which was sent to NYC DPR Director of Parklands and Director of Environmental Review, NYC DPR was provided an opportunity to join the CEQR process. To the best of NYSDEC’s knowledge NYC DPR did not participate, nor did NYC DPR submit comments on the DEIS. NYSDEC has reviewed the Permit application and has determined that impacts from the regulated activities to the regulated area comply with permit issuance requirements.

Comment 23: The U.S. Army Corp's Jurisdictional Determination as well as all wetland delineation documentation should be provided as appendices to the Permit application.


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Response 23: NYSDEC freshwater wetlands permit application requirements do not require the provision of U.S. Army Corp's Jurisdictional Determinations or wetland delineation documentation. The 2012 Stipulation establishes the limit of the NYSDEC state-regulated freshwater wetlands on the project site and are accurately depicted and labeled on application documents.

Comment 24: The wetlands that the Applicant seeks to fill were created previously as mitigation related to a previously permitted action: The Goethals Road North ‘Storage’ and the 1988 Morrow Street Associates Movie Theater.

Response 24: The mitigation areas referenced in this comment are located off-site and south of the project site in Block 171, Lot 95 and will not be impacted by the Project.

Comment 25: Until a proper study of mud turtle on-site has been conducted, the permitting process should be delayed a year in order to collect data during the appropriate season.

Response 25: The Department required an additional mud turtle study. See the response to comment 9.

Comment 26: The settlement agreement negotiated as related to the Freshwater Wetlands Appeals Board proceeding should be revisited as it was signed only two months before Sandy.

Response 26: The 2012 Stipulation constitutes a legally binding document and can only be reopened and renegotiated with both parties’ consent. It should be noted that the settlement agreement did establish NYSDEC’s jurisdiction under Article 24 over portions of the site under Article 24. The mere presence of wetlands does not automatically mean they are protected: they must be included in the state’s official wetlands inventory, a process that was challenged by the appeal back in 1987 and remained unresolved until the 2012 Stipulation. In addition, if the Settlement Agreement were reopened, NYSDEC’s freshwater wetlands jurisdiction over those currently-stipulated areas of mapped, freshwater wetlands and wetland adjacent areas could be challenged. See Section I. Introduction for additional discussion of the 2012 Stipulation.

Comment 27: One commenter stated that NYSDEC did not adequately enforce permit requirements as related to the Oakwood Beach Buyout development and expressed concern that NYSDEC will not enforce the terms of this permit, if issued.

Response 27: The Department strives to enforce all the permits it issues. Comment 28: Given the interest in the Permit application and the dissent expressed by residents and local elected officials alike, the Department cannot determine that a


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hearing is not necessary per Article 24 of the Environmental Conservation Law, section 24-0703; the project the Permit would allow is not “of such a minor nature as not to affect or endanger the balance of systems within the wetlands.

Response 28: Based on the law quoted in this comment, it appears that the comment is referring to NYS ECL §24-0703(2), which applies only to local governments that have been delegated the regulatory authority by NYSDEC to issue freshwater wetlands permits. NYSDEC has not delegated New York City this regulatory authority. See also responses to comments 22 and 23.

Comment 29: One commenter requested that the Department find and review several bird surveys that NYC DPR conducted over the last few decades prior to permit issuance.

Response 29: The Department is aware of these surveys and notes that NYC DPR could have submitted these surveys as part of the CEQR process, either as an involved agency or in response to the DEIS. In addition, the 2017 FEIS includes a site-specific, four-season, natural resource inventory for wildlife for the proposed project. The 2017 FEIS also assessed wildlife species, including endangered, threatened, or of special concern species under federal and state law. The 2017 FEIS concluded the proposed project would not result in any potential significant adverse impacts on wildlife. The Department, in its capacity as an involved agency and as a permitting authority, has reviewed the entire application including the various environmental quality review documents to ensure compliance with SEQRA, concurs with NYC DCP’s findings that the project would not result in any unmitigated, significant adverse impacts, and is bound by the determinations made by Lead Agency NYC DCP.

Comment 30: Lawyers from your organization erred in agreeing to the settlement stripping the wetland designation from the swamp forest subsequent to the owners’ relentless legal action against the state via the Wetland Appeals Board. Engineers from the NYC DEP who viewed the site have told us, “Any engineer who puts a shovel in the ground will tell you this is a wetland.”

Response 30: NYSDEC is aware that the northern portion of the project site contained or contains areas that its staff considered to be wetlands and therefore decided in 1985 to place on the revised tentative freshwater wetland maps for Staten Island. Those revised maps were promulgated in 1987. NYSDEC did not “strip” the wetlands designation; rather the designation was, due to the appeal, not in effect for the project site until settlement of the appeal by way of the 2012 Stipulation. Absent that stipulation NYSDEC may have lost jurisdiction over the whole site, save for the tidal wetland and adjacent area at the southern edge of Lot 1. See response to comment 26 and Section I. Introduction for additional discussion of the history of the Department’s jurisdiction over portions of the Project site.


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C. HABITAT PRESERVATION Comment 31: Development should not compromise Graniteville’s thriving wetland because doing so would make the North Shore of Staten Island more vulnerable to coastal storms, less able to contend with storm water runoff, and all the poorer for forfeiting an ecologically unique area.

Response 31: This permitting action addressed proposed construction on approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3; and the Department is requiring improvements to 10.77 acres of freshwater wetland and wetland adjacent area as delineated in the 2012 Stipulation. There will be no impacts to any mapped wetlands. In addition, and in accordance with NYSDEC SPDES Construction Stormwater General Permit (GP-0-15-002), the Applicant has developed a Stormwater Pollution Prevention Plan (SWPPP) consisting of both temporary erosion and sediment controls and post-construction stormwater management practices. The Applicant has designed stormwater quality treatment methods to meet NYSDEC design criteria and treat stormwater runoff from the proposed development and are described in the SWPPP.

Comment 32: While the Developer’s application to the City Planning Commission highlights a number of measures, both mandated and voluntary, to mitigate runoff and plant trees, it seems impossible that the development would be able to match the existing biodiversity in the area and all of the benefits it provides to the community.

Response 32: As per the terms of the 2012 Stipulation, the Project will provide mitigation measures that include enhancements to the freshwater wetland and the freshwater wetland adjacent area in the southern portion of the Project site. These areas will be improved with native vegetation plantings and provide better habitat for resident and migrating wildlife species as well as better stormwater buffering capacity than the existing disturbed conditions, while protecting the wetland’s character, quality, values, and functions. Overall, the proposed project would protect and restore the function of ecological systems for those freshwater wetlands within NYSDEC’s jurisdiction.

Comment 33: Graniteville Swamp’s value to migrating birds is on par with that of the Central Park Ramble and other New York City birding sites. The forest, salt marsh, and vernal ponds within the Swamp are ecologically valuable and on par with the Staten Island Greenbelt, Forest Park, Van Cortland, Riverdale, Pelham Bay, Jamaica Bay Wildlife Refuge, and Alley Pond Park.

Response 33: Comment noted. The wildlife benefits provided by the areas over which NYSDEC has jurisdiction will not be negatively affected by the Project.


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Comment 34: The Graniteville Swamp area is recognized by the New York-New Jersey Harbor Estuary Program and its partners in the Hudson-Raritan Estuary Comprehensive Restoration Plan (CRP) as being a significant conservation opportunity offering several important listed Target Ecosystem Characteristics (TECs).

Response 34: See response to comment 32. The natural resources benefits provided by the areas over which NYSDEC has jurisdiction will not be negatively affected by this Project.

Comment 35: Development of the site would add to fragmentation and loss of both aquatic and terrestrial connectivity, whereas such connectivity is a New York State priority under the Hudson River Estuary Program.

Response 35: The Project will reduce wooded habitat, but that habitat is outside of NYSDEC’s wetlands jurisdiction and, based on the 2012 Stipulation, does not include a freshwater wetlands area. The Project site abuts existing, trafficked roads to the west (Morrow Street), the north (Forest Ave) and the East (South Ave.) which already affect terrestrial connectivity in those directions. No streams are filled, wherefore aquatic connectivity is not at issue. The open space and habitat to the south of the Project will not be dissected, disconnected, or otherwise fragmented. The proposed mitigation (See response to comment 13) maintains continuity of the on-site wildlife habitat with the USACE tidal wetland, Old Place Creek and adjacent undeveloped properties contiguous to Graniteville Swamp Park through the enhancement and preservation of natural areas.

Comment 36: Development in the Graniteville Swamp area will cause loss of freshwater and tidal wetlands with attendant loss of flood water retention, ground water recharge and filtration capacity.

Response 36: No regulated tidal or freshwater wetlands will be lost or significantly impaired by the Project. The Project is designed to accomplish a stormwater balance compared to preconstruction conditions.

Comment 37: Development in the Graniteville Swamp area will cause loss of forested land with attendant loss of plant and animal populations that are becoming increasingly scarce as development increases.

Response 37: The Department’s jurisdiction applies only to those on-site, mapped wetlands that were preserved by the 2012 Stipulation. The disturbance to approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3 has been minimized to the maximum extent possible as part of design negotiations with the Applicant. In addition, NYSDEC and the Applicant have designed, and the Applicant will implement a wetland mitigation plan that will reduce or avoid potential significant adverse effects to natural resources. See response to comment 31. To the extent the commenter is concerned about increasingly scarce plant and animal populations,


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the Project is not expected to cause a significant impact on any threatened or endangered species. See also the response to comment 9.

Comment 38: The Graniteville Swamp area functions as an important groundwater recharge zone that helps maintain stable water levels at the Goethals Pond Complex that provides critical habitat for the wading bird and waterfowl and helps prevent flooding in the region.

Response 38: Comment noted. The Applicant has developed a stormwater infiltration system to maintain the water balance on-site, which integrates natural conservation areas, bioswales, wetlands and buffer area enhancements, and additionally includes structural stormwater controls stormwater management practices such as permeable pavers, Cultec Recharger Systems (Models 902HD and 150XLHD), and a stormwater detention pond to infiltrate, treat and detain stormwater on the project site. Minimal subsurface intrusion into the existing groundwater may result from the proposed structures’ foundations. The flow of groundwater may be minimally altered within the vicinity of the structures. It is anticipated that most of the existing groundwater will continue to flow south towards the United States Army Corps of Engineers (USACE) regulated wetland and Old Place Creek following completion of site construction. Any alterations to groundwater flow post construction due to construction or stormwater management practices are not anticipated to affect surrounding properties. As a result, the development will maintain the water balance to the regulated freshwater and tidal wetland areas, including the Goethals Pond Complex, which is northwest of the site and located across Forest Avenue.

Comment 39: Subsurface water would be greatly impacted if the habitat on-site were to be converted to impervious surface.

Response 39: In accordance with NYSDEC SPDES Construction Stormwater General Permit (GP-0-15-002), the Applicant has developed a Stormwater Pollution Prevention Plan (SWPPP) consisting of both temporary erosion and sediment controls and post-construction stormwater management practices. The Applicant has designed stormwater quality treatment methods to meet NYSDEC design criteria and treat stormwater runoff from the proposed development and are described in the SWPPP. The stormwater pond and Cultec Recharger Systems (Models 902HD and 150XLHD) in the SWPPP has been designed to provide attenuation of peak flows from larger storm events from the site. The SWPPP includes computations that demonstrate that the post-development stormwater flows from the site are


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less than the pre-development stormwater flows from the site for one, ten, and one-hundred-year, 24-hour storm events. The implementation of the post-construction measures included in the SWPPP would further mitigate discharge of stormwater to the USACE regulated wetlands (and subsequently Old Place Creek) and maintain quality. The stormwater management practices are designed to address any potential adverse impacts on water quality associated with post-development conditions. The proposed project integrates natural conservation areas, bioswales, wetlands and buffer area enhancements, in addition to structural stormwater management practices including permeable pavers, Cultec Recharger systems (Models 902HD and 150XLHD), hydrodynamic separators, and a stormwater detention pond to infiltrate, treat and detain stormwater on the project site.

Comment 40: On Sheets 5 and 7 and Pages 1 and 3 of the Permit application, the project is described as partially within a freshwater wetland adjacent area. The Applicant suggests that the 0.39 acres infringement will be compensated with 10.8 acres of freshwater buffer plantings; however, it is unclear if these enhancements are at the expense of other existing habitat, is more ornamental landscaping for visitors, or if it is creating high value and function habitat.

Response 40: The mitigation and enhancement efforts will create high value and function habitat. The southern portion of the project site would provide the area for the proposed mitigation. The existing, disturbed woodland vegetation would be supplemented by native plants and associated landscaping within the project site. This will include removal of invasive or nonnative plant species.

Comment 41: On Sheet 9 and Page 5 of the Permit application, it is unclear if the wetlands as mapped are the result of a wetland delineation according to NYSDEC methodology. Page 5 refers to a NYSDEC wetland field confirmation of March 10, 2019. Commenter asserts that a current application needs original wetland data sheets (such as in an appendix), with vegetation listed along with the wetland indicator status for each and the soil types.

Response 41: The Department field-confirmed the extent of the tidal wetland boundary on March 10, 2010. In addition, the 2012 Stipulation establishes the limit of the NYSDEC state-regulated freshwater wetlands on the project site. Both types of wetlands and their respective adjacent areas (150 feet for tidal wetlands and 100 feet for freshwater wetlands) are accurately depicted and labeled on application documents.

Comment 42: A wetland delineation for the purposes of obtaining an NYSDEC wetlands permit should be no older than three years. According to Page 5 of the application, an older wetland field verification was memorialized as part of the


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Stipulation before the Freshwater Wetland Appeals Board. It is unclear when it was conducted but likely any such delineation would then have been conducted in the 1980s or 1990s. It is stated that the wetland boundary was confirmed in 2010. All appear to be outdated for the purpose of issuing a wetlands permit.

Response 42: The current NYSDEC freshwater wetland line was determined by NYSDEC Region 2 Natural Resources staff members following field verification in 2010 and memorialized in the 2012 Stipulation. The 2012 Stipulation establishes the limit of the NYSDEC state-regulated freshwater wetland on the Project site. State regulated wetlands are accurately depicted on the project plans. The 2012 Stipulation and stipulated freshwater wetland line is indefinitely memorialized and does not expire.

Comment 43: An examination of the NYSDEC Freshwater Wetlands Map indicates three mapped NYSDEC freshwater wetlands along the northern half of Block 1707, well within the area that is proposed as part of the build-out area. This is in addition to both the NYSDEC Freshwater wetland along the southern half of Block 1707 and the National Wetland Inventory (NWI) wetland, which are recognized by the Applicant in their drawings (Figure 4, site plan, sheet reference no. SP1).

Response 43: This comment refers to areas NYSDEC sought to include in the 1987 freshwater wetland map. That attempt was challenged in the 1987 Freshwater Wetlands Appeal Board case # 87-100, which was settled by the 2012 Stipulation that determined the extent of the on-site freshwater wetland. The Department has no regulatory jurisdiction over these three areas along the northern half of Block 1707.

Comment 44: NYC DPR’s analysis of the Figures with updated and previous National Wetland Inventory maps indicates that previous mapping reached further northward than currently. There is no explanation given if a part of the earlier wetlands were drained, if the mapping (based on aerial imagery) has been upgraded, or other factors.

Response 44: The National Wetland Inventory maps differ from New York State’s freshwater wetland inventory in part because state law uses a different, vegetation-based system to identify the presence and boundaries of freshwater wetlands, whereas the federal government relies more heavily on what type of soil (hydrophytic or not) exists in an area. Irrespective of this distinction, NYSDEC determined in 1985 that some areas in the northern portion of the project site should be classified as state wetlands. As described in Section I. Introduction, above, the 2012 Stipulation settling the Freshwater Wetlands Appeals Board proceeding #87-100 resulted in an agreement to establish the freshwater wetland boundaries as shown on the project plans.

Comment 45: Figure 4 shows a Stormwater Management Area at the south end of the proposed development project. A 50’ wide emergency spillway is to be built to flow into the mapped ACOE wetland. A proposed 60” storm outfall with Tideflex check valve (inv


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6.25) is to be built to flow directly into the mapped NYSDEC freshwater wetland. While the design is shown in the figure, a description is needed on how this will function. There is no description of how the wetlands would fare if they accommodate additional flooding and what capacity of flooding they are expected to take on.

Response 45: See response to comment 39. Comment 46: The application does not contain an ‘existing conditions’ map or drawing that clearly indicates the topography and an all existing wetlands. Figure 4, 5 and 18 show wetlands and/or contours; however, these are interrupted by construction plans including unbuilt streets making it difficult to assess environmental impacts.

Response 46: The site plans are based on extensive review by NYSDEC staff; are the result of numerous discussions between the Applicant and NYSDEC; and underwent multiple revisions to ensure that they accurately represent the extent of regulated freshwater and tidal wetlands and adjacent areas. Figure 18 is based on a topographic survey of a licensed surveyor. The inclusion of mapped but undeveloped streets does not compromise the accuracy of the information provided by those plans.

Comment 47: The clearest map of the wetlands is given in Figure 5 specifically for jurisdictional wetlands; however, even here the maps are unclear. The NYSDEC tidal wetland appears to be inside the NYSDEC Stipulated Freshwater Wetland. While we understand that areas of overlap are represented once, it now appears as if NYDEC mapped an area both as fresh and tidal wetlands.

Response 47: There is no overlap between the tidal wetlands and the stipulated freshwater wetlands on-site. The Freshwater wetland starts from the boundary limit of the tidal wetland. As a result, only the tidal wetland adjacent area and freshwater wetland overlap.

Comment 48: NYC DPR could not identify where the isolated, non-jurisdictional freshwater wetlands on Sheet 8, page 4 of the application. NYC DPR asserted that figure 5 indicates only the southernmost wetlands and that there are a cluster of three FW wetlands not shown that appear on NYSDEC maps. NYC DPR requested clarification as to what is meant by non-jurisdictional freshwater wetlands mentioned in Section 3.0, Current Site Conditions: “The project site totals approximately 28.3 acres and consists of a primarily vacant lot that presently contains disturbed upland area, forested upland area, and isolated, non-jurisdictional freshwater wetlands.”

Response 48: The Department requires that an Applicant note only State-regulated wetland boundaries on application plans, which the Department subsequently and independently verifies during application review. In addition, NYSDEC’s jurisdiction over wetlands that were previously mapped in 1987 was affected by the 2012 Stipulation settling the Applicant’s Freshwater Wetland Appeals Board case #87-100. See also the responses to comments 41, 42, 43


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and Section I. Introduction for descriptions of the Department’s jurisdictional limits of freshwater and tidal wetlands.

Comment 49: As shown in Figure 6 on Sheet 41, the Stormwater Management Area is mainly within the one-hundred-foot NYSDEC Stipulated Freshwater Wetland one-hundred-foot adjacent area. Any stormwater management area should be located outside the adjacent area even at the expense of reducing the footprint of other parts of the development.

Response 49: As shown in Figures 11 – 17 of the Permit application, stormwater management infrastructure components will be installed throughout the project site. Some of these components, including a stormwater collection pond with an overflow outfall and rip-rap channel, are proposed in the freshwater wetlands adjacent area. To the extent these components are within areas under NYSDEC jurisdiction, their construction and use is not expected to substantially alter or impair the functions or benefits of the stipulated NYSDEC freshwater wetland as the design of the project safeguards life and property and protects natural resources. The storm water management system is consistent with the preservation of the stipulated NYSDEC freshwater wetland and meets the applicable standards for permit issuance.

Comment 50: A number of commenters stated that “to destroy 18 acres of wetlands is irresponsible no matter the reason.”

Response 50: Because the proposed project will impact approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3 and mitigate, enhance, and preserve an additional 10.77 acres of regulated freshwater wetland and wetland adjacent area associated the 2012 Stipulation, no mapped, state-regulated wetlands will be impacted. The “18 acres of wetlands” identified by numerous commenters are not within the Department’s regulatory jurisdiction.

Comment 51: NYC DPR’s vegetation surveys indicated wet areas that are not shown as wetlands by the Applicant and apparently weren't mapped as such to date. NYC DPR would request accompanying NYSDEC in the field to check the wetland delineation.

Response 51: See responses to comments 36 and 42. The wetland line was verified by Department staff.

Comment 52: The opening statement of Section 9.12 disregards the number of trees on the site within the limits of disturbance: “No trees in healthy condition beyond the field-identified limits of disturbance will be disturbed. These limits would be delineated by construction fencing or similar methods.” This is misleading.

Response 52: To the extent NYSDEC has jurisdiction over the Project, the


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impacts on vegetation associated with construction activities and subsequent mitigation were evaluated and found to be acceptable.

Comment 53: The mitigation numbers in the Permit application and the plans do not match up. Plans state that 2.1 acres of FW Enhancement, 2.76 acres of FW Buffer, and 0.25 acres of Tidal Wetland Enhancement for a total of 5.11 acres. Clarify how the Applicant is providing 10.8 acres of mitigation.

Response 53: The “10.8” acre figure does not describe the area of mitigation, but rather the sum of the mitigation areas, namely:

• 0.89 acres of stormwater management plantings in two separate zones;

• 2.77 acres of buffer plantings; • 2.10 acres of freshwater wetland enhancements; and • 0.25 acres of tidal wetland enhancements.

In addition, the 10.77 acres includes natural areas that do not require any plantings and enhancements but will remain undisturbed as identified on the Site Plan SP-1. Both the mitigation areas and the undisturbed natural areas, combined approximately 10.77 acres, will be protected against future development and disturbances through a deed restriction. In addition, this 10.77 area and the mitigation, enhancement, and preservation occurring on it are all requirements of the 2012 Stipulation.

Comment 54: Stormwater detention pond and wetland preservation should not be counted as forms of compensatory mitigation.

Response 54: The mitigation, enhancements, and preservation as related to this project were negotiated as part of a challenge to NYSDEC’s authority to map any portion of the on-site wetlands. See response to comment 53.

Comment 55: The wetland mitigation proposed is insufficient and is not in keeping with the "no net loss rule" of the Clean Water Act nor is it consistent with NYSDEC's own guidance on compensatory wetland mitigation. Per the application, Applicant will be impacting 0.39 acres of freshwater adjacent area and 1.96 acres of regulated freshwater wetlands. Per the application, the effective proposed mitigation for wetland losses is only 5.11 acres (2.1 acres of FW Enhancement, 2.76 acres of FW Buffer, and 0.25 acres of Tidal Wetland Enhancement).

A) Claiming that 6.94 acres will be preserved is not a form of compensatory mitigation for wetland losses.

B) The enhancement of 2.76 acres of buffer area for the loss of 0.39 acres for a

ratio of approximately 7:1 should not be a substitute for the appropriate


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replacement of lost freshwater wetlands function. C) According to NYSDEC published guidance "FRESHWATER WETLANDS

REGULATION GUIDELINES ON COMPENSATORY MITIGATION" wetlands Enhancement is the least desirable mitigation option. This project only proposes enhancements for regulated freshwater wetlands losses at a ratio that is marginally higher than 1:1. This is not sufficient for the loss of 1.96 acres of wetland function.

D) The Applicant should be held to a higher ratio for replacing freshwater

wetland function via the establishment of off-site freshwater wetlands, or a significantly higher ratio of enhancement.

Response 55: The comment erroneously assumes the Project will impact 1.96 acres of regulated freshwater wetlands. See responses to comments 36, 42, 43, and Section I. Introduction for a discussion of the wetlands located on-site and within the Department’s jurisdiction. No state-regulated wetlands will be impacted by the proposed development, as the project only affects approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3 and the Applicant is required to mitigate, enhance, and preserve an additional 10.77 acres of freshwater wetland and wetland adjacent area. See also the responses to comments 53 and 54.

Comment 56: Section 9 The value of the management of Phragmites australis as tidal wetlands enhancement for mitigation is increasingly undermined by the fact that sea level rise is anticipated to cause the tidal wetlands at this location to migrate upslope, which will naturally kill off Phragmites stands and replace them with marsh species tolerant of salinity and semi-diurnal tides.

Response 56: Comment noted. Improving plant diversity in the tidal wetlands adjacent area is ecologically beneficial, even assuming the diversified area may be succeeded by intertidal marsh plants at some time in the future.

Comment 57: It is NYSDEC’s job to keep the property subject to this permit application as “Forever Wild.”

Response 57: “Forever Wild” is a term of art as defined by Article XIV of the New York State Constitution and applies exclusively to New York’s Forest Preserve lands. The property subject to this permit application is privately owned, and the Department’s regulatory jurisdiction is currently limited to those area of freshwater and tidal wetlands that are stipulated as mapped and delineated in the 2012 Stipulation. The Project, as permitted, will preserve, protect and conserve the freshwater wetland at the project site and the benefits it provides. The mitigation areas will be preserved and protected against further alterations by a deed restriction.


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Comment 58: The drainage on the east side of the development as designed discharges directly into regulated wetlands. The development goes right to the edge of the wetlands without allowing for a wetland buffer. This will significantly impact wetland function and value.

Response 58: Stormwater will be attenuated, and the runoff reduction volume will be infiltrated within Cultec Recharger Systems (Models 902HD and 150XLHD) prior to discharge to the federally regulated wetland, thus maintaining the pre-development drainage conditions. Substantial distance (buffer) remains between the discharge points and the state-regulated freshwater and tidal wetlands. See response to comment 38.

Comment 59: Graniteville Swamp Park has been identified as an important area for protection in the Harbor Herons Wildlife Refuge. The larger area provides critical foraging habitats for five species of herons that breed at nearby Shooters and Pralls Island. These heron rookeries represent 40% of the entire breeding population in the New York metropolitan area.

Response: Comment noted. The Project, which is situated on private property outside of Graniteville Swamp Park, does not impact any marshes or mudflats, the typical foraging areas for herons.

Comment 60: The combined public and private parcels of Graniteville Swamp contain locally rare swamp forest dominated by sweet gum, red maple, and swamp white oak. Graniteville Swamp contains the only significant area of upland forest in northwestern Staten Island. Studies have focused on size of habitat in terms of overall area as a major factor in determining species diversity. The principles of "island biogeography" are directly applicable to the development of a strategy for a low-maintenance, environmentally sound and diverse open space system within an urban context. At 30 acres Graniteville Swamp meets the requirements for a habitat "island" capable of supporting between 60% and 70% of the maximum number of migratory bird species nesting in the northeast.

Response 60: Comment noted. Please note it is unclear what portion of the project site is within the “30-acre Graniteville Swamp” referenced, but 10.77 acres of freshwater buffer plantings, freshwater wetland enhancement area, tidal wetland adjacent area enhancement, stormwater management area, and preserved natural areas will be deed restricted.

Comment 61: NYC DPR’s breeding bird surveys indicate that Graniteville Swamp is a critical part of the migration of thousands of migratory birds passing through the region, including swamp sparrow, marsh wren, wood thrush, American woodcock, common yellowthroat, rufous-sided towhee, red-eyed vireo, and common yellowthroat, Bald Eagle, Blue winged warbler, Cerulean warbler, Easter warbler, Golden eagle, Kentucky warbler, Prairie warbler, Prothonotary warbler, Red-headed woodpecker, Rusty


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blackbird, Wood thrush, Piping plover, and roseate Tern. NYC DPR has data available even from the 1990s on habitat and wildlife in the area. NYC DPR has not been requested to share this information to date for this project. Our breeding bird census conducted in 1995 indicated the site as an important resting/feeding stopover for neotropical migrants. More than ten species of warblers were observed during a 90-minute census during the migration season. In one area alone, 82 bird species were identified overall. The Brown Thrasher, a species designated by New York State as a species of greatest conservation concern (SGCN-High) was found to breed there.

Response 61: See Responses to comments 9 and 29. Comment 62: The USFWS provides an IPaC Review of Federal Species on a property. Certain birds are protected under the migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. Any person or organization who plans or conducts activities that may result in impacts to migratory birds, eagles, and their habitats should follow appropriate regulations and consider implementing appropriate conservation measures.

Response 62: See Responses to comments 9 and 29. Comment 63: Birds are not the only fauna using the site. It is also home to snapping turtles. Each July red chokeberry shrubs provide sustenance for the larvae of the Striped hairstreak butterfly. Other butterflies found at the site are the Elfin and the Saltmarsh skipper. Noteworthy herbaceous plants have also been observed at Graniteville, including Turk's cap lily and slender-leafed iris, which is rated Class Two in the State; and the lance-leafed violet, a beautiful flower with a small, purple-veined, white inflorescence, grows along walking trails. One commenter stated that the property is home to white tailed deer, which are rare to see in an urban environment. That commenter also observed opossum, skunk. Chipmunks, squirrels, and other animals typically found in woodlands along the east coast on-site.

Response 63: See Responses to comments 9 and 29. Comment 64: The project might impact optimal habitat for the Southern Leopard Frog (Lithobates sphenocephalus).

Response 64: See Responses to comments 9 and 29. The Department also notes that the Southern Leopard Frog is a common species throughout its range and that it has not been identified on Staten Island.

Comment 65: The site is part of a contiguous red maple-sweetgum forest complex rated as (S1) critically imperiled in NYS by the NY Natural Heritage Program.

Response 65: Comment noted. The Project includes planting more than 1,200 red maple and sweetgum trees in the area subject the NYSDEC’s jurisdiction. See also the response to comment 65.


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Comment 66: The 1,800 trees estimated to be removed currently provide Staten Island’s wildlife and people with protection from flooding and air pollution, and greatly reduce the heat island effect that typically plagues urban cities that lack green space.

Response 66: With respect to flooding and air pollution see the responses to comments 38 and 108. The Department also notes that only a fraction of the 1,800 trees estimated to be removed from this site fall within NYSDEC jurisdiction. To the extent trees will be removed for the installation of the stormwater pond, it should be noted that water in that pond will have some capacity to absorb and retain heat. In addition, NYSDEC is requiring on-site plantings of approximately 2,200 trees and 8,500 shrubs.

Comment 67: One commenter questioned NYSDEC’s assertions that the wetlands are classified as Type 2. By NYSDEC’s own parameters: plants, groundwater recharge, wildlife habitat, storm water absorption, and scenic views, these parcels are valued way beyond the Applicant’s intended use.

Response 67: NYSDEC classified the on-site, freshwater wetland in 1987 as Class II Freshwater Wetland consistent with the applicable regulations, 6 NYCRR Part 664, because the wetland is contiguous to a tidal wetland and is located within an urbanized area. The “parameters” cited in the comment are more generic than the regulatory criteria for wetlands classifications. To be mapped as a Class I Freshwater Wetland a wetland must meet at least two more class II characteristics or at least one (other) Class I characteristic. While freshwater wetland classifications can be changed based on new information or materially changed conditions, there is a prescribed process for such a change, see 6 NYCRR 664.4. No such process was initiated for this wetland wherefore the classification is, for purposes of this application, binding.

Comment 68: NYC DPR expended significant funding and resources in 1989 to remediate adjacent Old Place Creek after Exxon Oil spilled 40,000 gallons of heating oil from the Bayway Facility Pipeline. Therefore, it does not make any sense to spend millions restoring wetlands and then fill the adjacent wetlands.

Response 68: The proposed Project does not involve filling any wetlands. The proposed Project impacts approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3 and the Applicant is required to mitigate, enhance, and preserve 10.77 acres of freshwater wetland and wetland adjacent area as per the terms of the 2012 Stipulation and the terms and conditions of the Permit. The Department lacks jurisdiction over the other 18 acres of the site.

Comment 69: The continued development of the wetlands in the area include the already implemented Amazon and Ikea distribution warehouses reduces [sic] habitat


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and drives wildlife such as deer, racoons, and skunks into our neighborhood streets. One commenter stated that deer had already eaten seven of her rosebushes.

Response 69: The Department’s jurisdiction over actions on the project site are limited to the approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3 upon which the Applicant proposes to permanently construct; and the 10.77 acres of freshwater wetland and wetland adjacent area that the Applicant is required to mitigate, enhance, and otherwise preserve. The Department does not have any jurisdiction over the remaining 18 acres of the 28.3-acre property subject to the bulk of construction.

Comment 70: This is an essential natural habitat for both animals and people and is the only neighborhood open green space where people can enjoy the benefits of forest and ponds and animals.

Response 70: The proposed Project impacts approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3 and the Applicant is required to mitigate, enhance, and preserve an additional 10.77 acres of freshwater wetland and wetland adjacent area as per the terms of the 2012 Stipulation and the terms and conditions of the Permit. In addition, the proposed project is located on privately-owned property and is not an open green space for neighborhood use.

Comment 71: On viewing the project site in NYSDEC’s online Environmental Mapper, there are several state and federal wetlands that are not part of the application package that overlie the portion of the site slated for parking lots and retail stores. These mapped wetlands appear to be within the development footprint.

Response 71: See response to comment 42. The federal wetlands are beyond the scope of this permitting action.

D. FLOODING and CLIMATE CHANGE

Comment 72: The Graniteville wetlands form an essential part of the City’s defenses against rising sea levels and the onslaught of future storms and hurricanes. Homes bordering the Graniteville swamp were largely spared from the devastation wrought by Hurricane Sandy. The swamplands absorbed the force of the winds and waves, providing a natural buffer that helped shield the community from the storm.

Response 72: See responses to comments 36 and 39. Comment 73: Areas behind existing salt marshes are likely to have on average 20 percent fewer property damages than areas where salt marshes have been lost to development or mismanagement of natural resources.


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Response 73: See responses to comments 36 and 39. Salt marshes are found in tidal wetland areas. The Project does not negatively impact any salt marshes or other types of tidal wetlands, nor is the Department issuing a permit for the Applicant to conduct regulated activities in the on-site tidal wetland.

Comment 74: The area proposed for development sits squarely within the New York City Panel on Climate Change’s estimated 2020 100-year flood map. The proposed development also borders areas that the Panel has suggested could be susceptible to high tide flooding by the 2050s. The wetlands also perform a vital function in capturing storm water runoff and reducing flood risk associated with heavy rainfall.

Response 74: See responses to comment 36 and 39. The proposed project has incorporated measures to mitigate stormwater runoff that include minimizing impacts from the proposed Project to the nearby residential community. As noted in the Water Quality assessment in Chapter 4 of the 2017 FEIS, “Natural Resources,” the Stormwater Pollution Prevention Plan (SWPPP) will ensure that after construction the site will retain, infiltrate, and release additional stormwater flows associated with the 1-year, 10-year, and 100-year, 24-hour storms at a rate and in a pattern which will maintain the pre-development drainage conditions. The conclusion of the Water Quality assessment determines that there would be no significant adverse impacts related to stormwater as a result of the proposed actions. In addition, the proposed 10.77 acres of freshwater buffer plantings, freshwater wetland enhancement area, stormwater management area, and preserved natural areas will be protected via a deed restriction to ensure the long-term protection of the mitigation. NYSDEC stipulated freshwater wetland, the USACE tidal wetland, and the NYSDEC tidal wetland and associated adjacent area would be preserved in their entirety within the project site.

Comment 75: Development in the Graniteville Swamp area will cause increased runoff from paved surfaces into adjacent freshwater and tidal wetlands. The Graniteville Swamp area performs important stormwater storage services especially to nearby developed residential communities, the loss of which would force major new sewer investments on the City.

Response 75: See responses to comments 36, 39, and 74. The Department also notes that, while City expenditure on sewer investments is beyond the scope, the 2017 FEIS addresses whether new sewer investments would be required as a result of the proposed Project and Lead Agency NYC DPC concluded that the proposed project would not result in any increase in stormwater flows to the City’s storm sewer system, nor would it result in a significant increase in water demand or sanitary and stormwater flows to the


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City’s sewer system, or any significant adverse impacts on the City’s water supply or wastewater and stormwater conveyance and treatment infrastructure

Comment 76: As climate change continues to threaten Staten Island, natural spaces such as wetlands, marshes, and forests are essential in reducing the effects of storms such as Hurricane Sandy.

Response 76: The Department’s regulatory authority is limited in the context of the proposed Project to approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3 and the 10.77 acres of freshwater wetland and wetland adjacent area subject to mitigation, enhancement and preservation as delineated in the 2012 Stipulation.

Comment 77: Graniteville Swamp provides flood control for the neighborhood. Without the swamp, the residential and commercial properties will be prone to flooding during storms.

Response 77: See responses to comments 36, 39, and 74. Comment 78: The Graniteville wetland receives stormwater from a variety of sources including the Lisk Ave. Creek and the Willowbrook stream. If NYSDEC permits this action, where 1,800 mature trees that process and filter 700 gallons of stormwater per tree per year, an additional 560,000 gallons of water will permeate the neighborhood.

Response 78: The 1,800 trees that this comment describes are not located on a state-regulated wetland or wetland-adjacent area. As a result, NYSDEC’s jurisdiction over the permittee’s entire construction project are limited to approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3 and the 10.77 acres of freshwater wetland, wetland adjacent area, and tidal wetland adjacent area to be mitigated, enhanced, and preserved as per the terms of the 2012 Stipulation. In addition, the Project is designed to achieve a stormwater balance, see responses to comments 36, 38, 39, 66, 74, and 79.

Comment 79: NYSDEC should not allow an increase in flood risk to homes and business.

Response 79: The Project, to the extent it falls within NYDEC’s jurisdiction, is designed to achieve a stormwater balance so that the Site will continue to convey stormwater at equal or greater volume than before to the lower lying wetlands area. See also comment responses 36, 38, 39, and 74.

Comment 80: This permit action is not consistent with Governor Cuomo’s and NYSDEC’s own goals of having a more resilient New York State.


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Response 80: Comment noted. See various NYSDEC responses regarding

mitigation measures related to wetlands and wetlands adjacent areas in this Responsiveness Summary. Comment 81: Many wetland restorations have been implemented and others proposed throughout the Harbor Estuary Region to preserve wildlife habitat, protect water quality, absorb floodwaters, and attenuate the impacts of coastal storms. Preserving these existing water-absorbing buffers should be a top priority.

Response 81: The Department agrees and exercises its regulatory and enforcement authority to preserve and protect all mapped wetlands. The Project, to the extent it takes place within NYSDEC’s jurisdiction, accomplishes that goal through various design elements and mitigation measures.

Comment 82: Projections for sea level rise and impacts from coastal storms have consistently projected severely-increased flooding in the region, including Staten Island. Wetlands are a primary natural defense against flooding and provide countless public benefits at no costs.

Response 82: The Department notes that no wetlands, the Department’s jurisdiction over which is delineated in the 2012 Stipulation, will be disturbed by this proposed Project. See response to comments 79 and 81.

Comment 83: Before New York spends billions of dollars on floodgates and seawalls, it is critical to protect our existing wetlands that provide proven flood protection and many other benefits at no costs. The more wetlands preserved, the more property protected, the more local communities remain intact, with fewer public expenditures required for engineered structures and other flood protection.

Response 83: Comment noted. The Department notes also that no wetlands, the Department’s jurisdiction over which is delineated in the 2012 Stipulation, will be disturbed by this proposed Project. See also responses to comments 79 and 81.

Comment 84: It is wrong to remove 1,800 mature trees that remove carbon dioxide from the air. Combating climate change means planting more trees, not removing them.

Response 84: The Department’s regulatory authority is limited in the context of the proposed Project to approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3 and over Applicant’s mitigation, enhancement, and preservation efforts on 10.77 acres of freshwater wetland and wetland adjacent area as delineated in the 2012 Stipulation. The Department has reviewed the proposed action in that context and has determined that the Applicant meets all regulatory standards for issuance.


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In addition, and in accordance with the NYSDEC-approved site plan, the proposed project includes tree replacement: planting of approximately 2,200 new trees and 8,500 new shrubs.

Comment 85: One commenter stated that during Sandy, the Goethals Mobile Home Park to the west of the wetland was flooded. Graniteville to the east of the wetland was not flooded. That commenter believes that it was the wetland that saved the resident to the east of the wetland from flooding.

Response 85: Comment noted. Comment 86: Increased rainfall and other issues related to climate change have caused increased flooding in the neighborhood surrounding the proposed project. One commenter was concerned that torrential rains rush so quickly down the street that they jump right over catch basins and pose a risk to people, children and animals, which could be carried away by the rushing water. Removing 1,800 mature trees, each of which absorb 100 gallons of water per day, will cause increased stormwater flooding. The Applicant should be made to demonstrate that the project will not increase stormwater flooding.

Response 86: See responses to comments 36, 38, 39, 74, 76, and 84. Comment 87: Based on NYSDEC Sea Level Rise Mapping, the entire area will be impacted by extreme high tides and Sea Level Rise in the future. Preserving the wetlands and forest on-site will help protect the area from sea level rise and minimize the costs of climate change and the risks including:

(a) For every $1 spent on mitigation, there is a $4 return of avoided losses in the future. (FEMA). (b) Managed retreat must also be part of this plan to protect us from rising sea levels. Every $1 invested in disaster mitigation saves $6 in spending to reduce risk, while saving lives and property and creating jobs. (Building Sciences).

(c) Trees absorb the atmospheric pollutant Co2. Their root systems sequester carbon, thus lessening the Co2 in the atmosphere and reducing our impact on the climate. Response 87: Rising sea levels are expected to bring salt water into low lying coastal areas and, in doing so, can also increase the salinity of groundwater. The presence or absence of trees at the project site does not protect the site or surrounding area from sea level rise. The regulated wetlands at the project site will, however, be preserved. Additionally, see responses to comments 36, 38, 39, 74, and 76.


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Comment 88: The developers only consider “hundred-year storms”, but since we are now well into Climate Change, what were called “thousand-year storms” are now common and occur quite frequently. “Hundred-year storms” should no longer be the standard.

Response 88: NYSDEC is required by law, regulation, and policy to evaluate the application based on existing regulatory standards, which do not require “thousand-year storm” analysis. The Project complies with the stormwater management requirements under currently applicable standards, including NYSDEC SPDES GP-0-15-002. The proposed project would: 1) implement bioswales, infiltration practices, and plantings throughout the development and enhance and conserve approximately 10.80 acres of natural areas to reduce stormwater runoff generated by the proposed project; 2) retain, infiltrate, and release additional stormwater flows associated with the 1-year, 10-year, and 100-year storms; and 3) discharge water from the stormwater management devices at a rate and in a pattern similar to the pre-development drainage condition of the site.

Comment 89: If built, the proposed project would substantially raise the elevation of the developed area, further increasing the flood risk to the surrounding area. In the southeastern corner of the project, the elevation would increase almost 10 feet, from the current 4-foot elevation to a 13-foot elevation. The base flood elevation is around 10 feet in the area, meaning that the raised area will displace a large amount of water to neighboring properties in a flood scenario. This impact could contribute to increased flooding risk in the area and potentially lead to updated FIRMs that show that even more of the neighboring community is at risk.

Response 89: These elevation changes have been evaluated by the Department and the NYSDEC SPDES GP-0-15-002 takes these evaluations into consideration when requiring stormwater runoff mitigation. See responses to comment 36, 39, and 74.

Comment 90: Compacting the soil for construction and elevating the property by the proposed 8 feet will disrupt the delicate hydrology of the area. Once the Graniteville natural area is filled in, the only low‐lying part of the region will be the three condominium communities along South Avenue.

Response 90: See response to comment 36, 39, 74, and 89.

E. ENDANGERED SPECIES Comment 91: Please provide a copy of the protocol that was used for the search for the Eastern Mud Turtle. According to a herpetologist, the search was not conducted in the correct season.


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Response 91: See response to comment 9.

F. STORMWATER Comment 92: The Applicant’s calculated expected q equals CIA (0.95) does not include sedimentation and cleaning, removal of sediment is not included in the Applicant.

Response 92: In accordance with NYSDEC SPDES (GP-0-15-002), the Applicant has developed a Stormwater Pollution Prevention Plan (SWPPP) consisting of both temporary erosion and sediment controls and post-construction stormwater management practices. Stormwater quality controls have been designed to meet the NYSDEC design criteria. The stormwater pond and Cultec Recharger Systems (Models 902HD and 150XLHD) in the SWPPP has been designed to provide attenuation of peak flows from the larger storm events from the site and the SWPPP has demonstrated that the post-development stormwater flows from the site are less than the pre-development stormwater flows from the site for one, ten, and one-hundred-year, 24-hour storm events. The SWPPP includes an inspection and maintenance schedule for the permanent stormwater control practices, which includes removal of sediment.

Comment 93: The Applicant must provide a bond that assures that the Applicant will maintain the constructed drainage and that Treemco will maintain the mitigation pond.

Response 93: In accordance with the SWPPP, long term operation and maintenance of the stormwater management practices on the Applicant’s property are ensured through a maintenance agreement.

Comment 94: Seepage of contaminants from the proposed large parking lot and gas station will enter the adjacent tidal wetlands.

Response 94: In accordance with the SWPPP, all stormwater will be captured and adequately treated prior to disposal to the sanitary sewer or wetlands. See responses to comments 36, 39, and 74.

Comment 95: The wetlands on-site aid in filtering pollutants, including nutrients such as nitrogen and phosphorus, from the runoff, rain and flooding.

Response 95: This permitting action exclusively addresses construction on approximately 0.39 acres of currently undeveloped adjacent area of state regulated Class II freshwater wetland E-3; and the mitigation, enhancement, and preservation of 10.77 acres of freshwater wetland, wetland adjacent area, and tidal wetland adjacent area. This project does not impact any on-site wetlands. See also responses to comments 36, 39, 74, and 96, which discuss management of stormwater runoff


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Comment 96: The Graniteville Wetlands and upland forest play a very important role in protecting the habitat from soil erosion and reducing sediment from entering our Waterways, including Arthur Kill and other channels.

Response 96: Sediments from the Project site will be retained during construction through stormwater management practices consistent with the SWPPP. Once the construction is completed, particles that may be transported by stormwater flow will be able to settle in the stormwater system and the stormwater pond. Any residual sediments in stormwater would be filtered and absorbed by the vegetated areas downgradient before they can reach open water.

Comment 97: The plan to remove water from the site in the developer’s report does not seem to be adequate. Please provide the capacity and location of the proposed retention basins and explain whether they are adequate to hold the water from this new type of storm; whether they will interfere with the functioning of the remaining salt marsh; where the overflow goes; and who is living near there.

Response 97: See response to comment 39. Comment 98: The design plans include a Stormwater Management Area where a spillway within the current wetland adjacent area will flow directly into the mapped wetland. We question this use of adjacent area and would expect stormwater to be held outside the adjacent area so that the buffer act as a filter prior to drainage into the wetland itself.

Response 98: See response to comment 49. Comment 99: The developer has proposed a large retention pond to minimize possible flooding, but this will only serve the immediate site, not drainage they admit enters the area from the surrounding community. A retention pond will not prevent runoff from the proposed 860 car parking lot from making its way into the creek of the adjacent state‐regulated wetland whose protection is the primary purpose of the application process.

Response 99: See responses to comments 39 and 74.

G. AIR QUALITY

Comment 100: NYSDEC has issued 30 Air Quality Alerts in the span of 14 months, yet NYSDEC is willing to allow removal of mature trees. NYSDEC and City Planning may be complicit for future respiratory symptoms of citizens if this permit is issued.

Response 100: As per the terms of the 2012 Stipulation and in accordance with the NYSDEC-approved site plan, the Applicant is required to plant approximately 2,200 new trees and 8,500 new shrubs. In addition, the 2017 FEIS concluded


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that a mesoscale analysis was not required for this project because the project does not have the potential to greatly increase the total number of vehicle miles traveled in a region and that the proposed project would not result in any significant adverse air quality impacts.

The Department, in its capacity as an involved agency and as a permitting authority, has reviewed the entire application including the various environmental quality review documents to ensure compliance with SEQRA, concurs with NYC DCP’s findings that the project would not result in any unmitigated, significant adverse impacts, and is bound by the determinations made by Lead Agency NYC DCP.

H. EDUCATION, SCIENTIFIC RESEARCH AND OPEN SPACE

Comment 101: If the New York State Department of Parks and Recreation or the City Department of Parks and Recreation purchased the property for public use, the site could be used to educate the public about the value of wetland habitats, as outdoor classroom and education resource. This is one of the last remaining green spaces in the area which could provide the surrounding community with a variety of opportunities to get out and enjoy the benefits of nature in an urban environment. It could bring a community together, help combat obesity by providing a natural area to go for walks and could get people outside to enjoy a nice walk in the woods. Keeping the site as public open space would increase the value of the property and provide the public a green space to use to escape from the urban environment.

Response 101: Comment noted. The Department also notes, however, that City and State eminent domain power are beyond the scope of this permitting action.

Comment 102: There is no open green space in this neighborhood, except for the salt marsh and forest. Comment 103: The proposed development in the Graniteville Swamp area will cause a loss of neighborhood green space. Forested land decreases air and noise pollution, wind speeds during storm events, and functions as an aesthetic amenity for the community.

Responses to Comments 102 and 103: As discussed in the Open Space screening assessment in Chapter 14 of the EIS, “Screening Assessments,” the project site is privately-owned, not accessible to the public, and does not contain any recreational amenities. Therefore, the Project will not displace any publicly-accessible open space resources.

I. BEYOND THE SCOPE


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The Department has reviewed Comments 104 to 143 and has determined that

these comments are beyond the scope of the Department’s review of the Permit application because they raise issues that are not relevant to whether this project meets the Department’s applicable permitting criteria. Please note also that numerous commenters provided the Department with the same or substantially similar comments, which were conveyed in 1,034 form comment correspondences (letters and emails). As a result, these comments have been aggregated below. Comment 104: The application and 2017 FEIS are also deficient because they fail to present the potential impacts on existing businesses that the tenant to which the Applicant has committed to leasing space to if the project is developed will have on existing businesses. Comment 105: The 2017 FEIS claims that BJ’s will not “alter existing economic patterns in the area” because the neighborhood already includes a Home Depot. But a BJ’s will have a very different economic impact than a relatively specialized home-improvement retailer. Local businesses from groceries, to home-goods stores, to gas stations, will all be in direct competition with this behemoth; this cannot possibly leave the neighborhood’s “economic patterns” undisturbed. The EIS fails to acknowledge the substantial, and potentially devastating, economic impact that BJ’s will have on the area, hiding behind the fact that there are existing retail establishments in the study area. Comment 106: The proposed gas station includes plans to build a buried storage tank ten times larger than that of any existing service station nearby.

Comment 107: As related to flooding, clarification is needed if the post-Hurricane flood maps from FEMA are the most recent available. There doesn’t seem to be acknowledgement of future flood zones given accelerated sea level rise. Comment 108: The existing, fully-grown trees filter the toxic air and poisons coming from the nearby Staten Island Expressway, the Newark Airport, and the chemical treatment plants In Elizabeth NJ and Graniteville has one of the highest rates of cancer and asthma on this island. Comment 109: Graniteville Swamp exemplifies the very best qualities that New York City has looked for in its Parks system. It should made into a NYC Park or a NYSDEC protected land. Comment 110: Concerned Staten Islanders fought to save the Graniteville swamp forest area and won at least twice before – once in 1996 when a Walmart was proposed and defeated. Big Box Stores are less valuable to the community than the forest because they put other small, local business out of business. Comment 111: Support from the New York City Mayor’s office for this project


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demonstrates how little New York City government has learned from the impacts of Superstorm Sandy. Comment 112: The state should find the resources to acquire the parcels subject to this permitting action and add them to the already existing Graniteville Swamp preserve. It would be in the best interest for either the State or the City of New York to offer this site as a wonderful destination for residents, visitors, and classrooms to use for recreation activities. Comment 113: There is no lack of available commercial space on Staten Island. There are numerous empty (and for sale) commercial buildings as well as many commercially zone empty lots on Staten Island to open or build a store without impacting sensitive natural areas. Comment 114: The Applicant has not met the Section 404 Clean Water Act standards of ‘Little or no disturbance’ to wetlands. Comment 115: The adjacent neighborhoods of Graniteville and Mariners Harbor are part of an Environmental Justice Community. Comment 116: It is important to consider the long history of communities of color, like Graniteville, bearing the brunt of negative environmental impacts such as exacerbated flooding from wetland filling. Comment 117: The proposed fill and development should be seen against the backdrop of a long history of neglect and environmental harm experienced by the residents that will be affected by this misguided proposal. Comment 118: The 18 acres of wetland forest are near a major industrial complex. The chemical plants and refineries across the Arthur Kill in Linden, New Jersey release carcinogenic pollutants and those pollutants are carried by prevailing winds across the neighborhoods of Graniteville and Mariners Harbor. Further, local concerns include traffic-congestion and inadequate sewer infrastructure. Comment 119: A number of trees were cut down as part of the Midland Beach project. That area was woefully unprepared for Hurricane Sandy, but the disaster was made worse by the loss of forest. If the forest remained during Sandy, it would have slowed down the fury of the storm surge and there would have been less destruction and perhaps less loss of life. Comment 120: The proposed gas station will undercut the prices of local gas stations and some will likely go out of business. Small business will also likely close down because they will not be able to withstand the competition. Most of the jobs that this project will create will be temporary construction jobs and the remainder will be non-union, minimum wage jobs.


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Comment 121: Solar panels are not resilience. They will not protect anyone from flooding. Comment 122: The North Shore of Staten Island deserves the same environmental protections as the South Shore. Comment 123: The EJ community should not lose the only resilience against flooding. Comment 124: If the community loses this “swamp” and then becomes a flood plain, residents will be forced to buy flood insurance. Comment 125: With this project, increased congestion will result, as well as increased risk of injury or death of children, disabled, and the elderly. Comment 126: If BJs puts many existing businesses out of business, what happens to the tax base? And if that doesn’t happen and there is an increase of the tax base, how much of that tax base will be spent in this neighborhood? In addition, the majority of the money made at BJs will not remain in the neighborhood, will not circulate here, and will leave the communities surrounding this project in worse shape than they are currently. If minimum wage is paid to the workers, they and their families will not be able to live here, and that money will also leave the surrounding communities. Comment 127: The noise level will be unbearable, especially for those living along South Avenue, considering existing sources and the increased congestion from delivery trucks, especially during holidays. Comment 128: One commenter attached testimony submitted to the New York City Council by NRDC and stated that it was largely ignored by council members. The Commenter did not request that NYSDEC take any specific action on this submission. Comment 129: Although the proposed project avoids the 2012 federal jurisdictional area, it cannot not do so absolutely. Federal regulations mandate new jurisdictional determinations that reflect current physical and legal conditions be done every five years. The 2012 Jurisdictional Determination (“JD”) expired in December 2017. Comment 130: One Commenter was puzzled by the extensive parking area when there is already large amounts of parking associated both next door, and across Forest Avenue where there is a Home Depot. Comment 131: The City’s ULURP process was deeply flawed and many comments were absolutely ignored. It is the responsibility of the state to exercise proper oversight and set this matter right. Commenter 132: BJs should find another, preexisting warehouse space. There are other locations on Staten Island for BJs, including the large building next to the Modell’s at 1801 South Avenue.


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Comment 133: Do not allow another large retailer selling items, that we can already purchase from the countless other retailers, set up shop. Comment 134: Do not allow more development on Staten Island. Comment 135: Do not let the greed of one private developer to put homes of hundreds of people at risk. Comment 136: Several commenters compared this proposed Project to Bolsinaro setting the Amazon on fire. Comment 137: Staten Island is overpopulated and over done with strip malls, and our beautiful borough is turning into an ugly mass of urban industrialization, leaving us open to natural disasters as in the floods of Hurricane Sandy. Comment 138: We should be protecting the wetlands fiercely rather than destroying them for big box retail that is in big decline anyway. Comment 139: One commenter noted that he has been up and down the Arthur Kill and its tributaries many times in small boats, and every time he returns, he is struck by the amount of new construction and the consequent loss of wetlands and open space. Comment 140: The fact that a Costco is within the same zip code will only result in shoppers visiting both stores, as each is famous for its own line of goods and statistically, Costco card members are BJs card members. Comment 141: The Air quality on the North Shore of Staten Island is quite poor. Comment 142: The argument that the community needs a supermarket sounds like a great soundbite. But more access doesn’t mean more opportunity for those who need it most. Commenter 143: One commenter stated that one of the reasons the commenter moved to New York and has subsequently stayed in New York is related to New York’s progressive stances on human rights, worker rights, and environmental rights. The commenter encouraged NYSDEC to continue to be a bastion of liberal progress in these dark times and to stand up for what is right, not what is going to line someone else’s pockets.

josif a llc, south ave retail - b 1707/ l 1 & 5

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