New York State Department of Environmental Conservation
In the Matter of the Application of PETITION FOR PARTY STATUS
Application Number 0-9999-00096/00005
CROSSROADS VENTURES, LLC
For The Belleayre Project at Catskill Park
for permits to construct pursuant to the Environmental Conservation Law
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I Introduction
This Petition for Party Status is submitted by the Catskill Preservation Coalition (hereinafter referred to as the "CPC") which is comprised of the following groups: The Natural Resources Defense Council, Inc., Catskill Heritage Alliance, Pine Hill Water District Coalition, Theodore Gordon Flyfishers, Inc., Zen Environmental Studies Institute, Friends of Catskill Park, Catskill Center for Conservation and Development, Trout Unlimited, New York Public Research Interest Group and Riverkeeper, Inc., by their attorneys, the Law Office of Marc S. Gerstman, Esq. The Sierra Club joins in this Petition for Party Status.
The CPC hereby petitions for Full Party Status pursuant to 6 N.Y.C.R.R. ß 624.5 (b) in the above referenced adjudicatory hearing. The CPC represents a wide range of local, regional, statewide and national environmental, conservation, community, landscape preservation and economic development interests which will be adversely impacted by the proposed Crossroads Ventures, LLC project ((hereinafter referred to as the (Belleayre Project().
The Belleayre Project will result in significant and unmitigated adverse environmental impacts which will have a critical bearing on the future of the Catskill Park, the Towns of Shandaken and Middletown, the Route 28 Corridor, the central Catskill communities and the New York City Watershed and Drinking Water Supply. In the hearing, the CPC will present expert testimony and evidence on the substantial and fatal deficiencies in the Draft Environmental Impact Statement ("DEIS"), supporting documentation and applications and on the significant and pervasive adverse environmental impacts which will result from the Belleayre Project.
The State Environmental Quality Review Act, ECL, Article 8 ("SEQRA") requires that the Belleayre Project's significant adverse environmental impacts, reasonable alternatives, and mitigation measures be identified and objectively evaluated. As outlined below, the CPC will present evidence that the DEIS does not provide a reasonable and candid evaluation of the adverse visual, traffic, noise, economic, water quality, ecological, wildlife and habitat, community character and cultural resource impacts. These fatal defects in the DEIS regarding the substantial adverse impacts which will result from construction and operation of the Belleayre Project deprive the Commissioner of the legally necessary environmental analysis and record upon which she must make SEQRA findings pursuant to 6 N.Y.C.R.R. ß 617.11. Moreover, multiple aspects of the Belleayre Project do not meet permit standards pursuant to the Environmental Conservation Law.
II Summary of Substantive and Significant Issues
CPC, by this Petition, presents substantive and significant issues for adjudication. CPC's experts will demonstrate that the Belleayre Project will dominate and irretrievably alter the landscape throughout the Towns of Shandaken and Middletown, the Route 28 Corridor, and the Catskill Forest Preserve. Its intrusion will be substantial and unavoidable. The Belleayre Project will degrade the landscape and substantially interfere with the region's economic vitality and renaissance.
CPC will demonstrate that Crossroads Ventures used inappropriate methodologies and standards to assess sediment and erosion control, project alternatives, impacts from project noise, blasting, and traffic, as well as project impacts to aquatic and wildlife habitat, wildlife resources, community character, the Forest Preserve New York City's watershed, and local potable water quality and quantity. The DEIS also fails to take account of cumulative impacts and adverse secondary growth impacts that will result from this Project. As a result, the DEIS artificially minimizes or ignores the substantial impacts from construction and operation of the Belleayre Project.
III Environmental and Statutory Interests of the CPC Members
The members of the CPC view the Belleayre Project and its significant adverse environmental impacts from diverse local, regional, statewide and national perspectives. However, all of members of the CPC possess a common and profound interest in the economic and environmental health of their communities and in the Catskill Mountains.
Members of the CPC submit that the Belleayre Resort project will result in significant adverse environmental impacts on the character of the Catskill Park and the local communities; the forest preserve and New York City Watershed; the area's streams, flora and fauna; community character and quality of life, water supply; roadways and traffic; rural character and viewshed; and the social and economic vitality and base of the area. CPC is further concerned about the multiple impacts of 8 years of construction. CPC ës member organizations submit that a development project of this magnitude will dominate the Central Catskill Region, lead to other large scale commercial development projects, and ultimately transform the area from the unique configuration of mountain park, forever wild forest preserve, historic villages and watershed, to an overcrowded, commercialized tourist area. The loss to New York State would be irretrievable and felt throughout the State
The CPC's interests relate to: DEC's implementation of SEQRA (including the project's impacts to visual, noise, traffic, community character, water quality, secondary, neighborhood, wildlife and habitat); water quality protection, Article 17, Environmental Conservation Law; mining and land reclamation laws and regulations, Article 23, Title 27, Environmental Conservation Law; protection of waters, Article 15, Title 5, Environmental Conservation Law; water supply, Article 15, Title 15, Environmental Conservation Law, Article IX of the New York State Constitution; and fishery and habitat protection, Article 11, Environmental Conservation Law.
A. Trout Unlimited
Trout Unlimited's ("TU") mission is to conserve, protect and restore North America's trout and salmon fisheries and their watersheds. TU accomplishes this mission on local, state and national levels with an extensive and dedicated volunteer network. Locally, the two chapters, Ashokan/Pepacton and Catskill Mountains, have joint responsibility for the Esopus-Ashokan system. They are organized as all volunteer not-for-profit organizations.
Two years ago, they participated in The Birch Creek Project, an on-going effort to reconnect and improve habitat on Birch Creek. Working in collaboration with the U. S. Fish and Wildlife Service, crews of volunteers installed fish-friendly baffles on a double-concrete box culvert in Pine Hill. Crews have also planted trees and willows in the Day Use Area. The two chapters are presently collaborating with DEC's Division of Operations to install a Denil steep-pass fishway for the Belleayre Mountain Ski Center diversion structure, and will buy the fishway with an Embrace-a-Stream grant from TU National. In respect to Birch Creek and other area streams, the chapters are long-term, committed stake-holders.
Esopus Creek Rainbow Trout are part of Catskill's history. Originally, these fish were brought east from California and introduced in the waters of the Catskills during the 1880s. They have thrived in the Esopus-Ashokan watershed system. As one or two year old fish, they swim down to the Ashokan Reservoir to feed on alewives, then swim up the main stem and tributaries to spawn, entering the Esopus as early as November and lingering as late as June. Theodore Gordon, A. E. Hendrickson, Jim Payne, Roy Steenrod, Everett Garrison, Preston Jennings and other expert sportsmen fished the Esopus and praised its rainbow trout.
†
The Esopus Rainbows are a self-sustaining, feral population. In addition, the Esopus system contains feral Brown and Brook Trout. Rainbow, Brown and Brook Trout fingerlings are found in Birch Creek and Lost Clove Brook, qualifying both streams for Trout Spawning classification (the records are in Appendix 20 of the DEIS, though not all that were submitted were included) Redds can at times be spotted by walking the banks. These streams are essential to recruitment of all three Esopus drainage species, and the Rainbow and other feral Trout they harbor can legitimately be called a cultural heritage.

B. Natural Resources Defense Council, Inc.
The Natural Resources Defense Council, Inc. ("NRDC") is a New York not-for-profit organization that includes among its principal purposes the protection of the environment in all its aspects, including land, water and air. NRDC is headquartered in New York City and has taken a special interest both air quality and the Hudson River. NRDC has a national membership of more than 500,000, including many members who live or work in the area of the proposed project or who use the Hudson River in the area and its adjoining shores for recreation.

The environmental interests of NRDC in this proceeding are clear. NRDC has and continues to focus on protecting the watershed of New York City. Working on its own and with others, it has advocated for the protection of sensitive lands within the New York City Watershed and has opposed inappropriate incursions into the landscape. Its members include many people who live in the Catskills, New York City and Ulster and Delaware Counties and countless others who hike the hills and other lands. These members, and the organization itself, will be adversely affected by the proposal of Crossroads Ventures to construct the Belleayre Project.

C. Riverkeeper, Inc.
Riverkeeper is a not-for-profit public interest environmental organization organized under the laws of the State of New York. It is dedicated to protecting the Hudson River, its tributaries, and the New York City drinking water supply watershed. Riverkeeper is a surviving corporation that resulted from the 1992 merger with the Hudson River Fishermen(s Association, Inc., a private conservation organization founded by fishermen in 1966 to gather, study, and disseminate information about the ecology of the Hudson River as well as other important water bodies in New York.
The proposed project is located in the Catskill and Delaware watersheds. Together, these watersheds provide up to 90% of the unfiltered drinking water supply for nearly 9 million New Yorkers. Riverkeeper was a negotiator of, is a signatory to the 1997 New York City Watershed Memorandum of Agreement, and has worked to protect the New York City Watershed for more than 15 years. Riverkeeper has approximately 5000 members many of whom live in the Catskill Mountains and in New York City and drink water supplied from the Catskill and Delaware watersheds. Adverse impacts from the proposed project could jeopardize the quality of the drinking water produced in the Catskill and Delaware watersheds. The proposed project also could affect Riverkeeper members that live in or near, fish in, or otherwise use and enjoy the Catskill and Delaware watersheds.
D. The Catskill Center for Conservation and Development
The Catskill Center for Conservation and Development ("Catskill Center") is a not-for-profit membership organization committed to balancing the protection of natural resources with sustainable economic development in the Catskill region. Founded in 1969, the Catskill Center is a regional advocate emphasizing the development and implementation of innovative programs in natural resource conservation, community planning & development, education, and regional arts and culture. The Center's advocacy work has focused on protecting the Catskill Mountain region, with its rich cultural legacy, which encompasses some 6,000 square miles of mountains, small towns, rivers, and farmlands. The area also serves as the primary source of water for the City of New York. The Catskill Center is an advocate for the region's vibrant main streets, beautiful natural resources, cultural assets, working landscapes, and drinking water resources.
Specifically, the Catskill Center has engaged in diverse activities within various Catskill communities in order to achieve its objectives including:
Protect and conserve natural resources in partnership with other agencies and organizations;
Monitor, and when appropriate, take action on regional environmental,
land use and natural resource issues impacting the region;
Provide technical assistance, information and leadership to small businesses throughout the region in order to build sustainable communities;
Developed an interdisciplinary Catskill curriculum for teachers;
Coordinate a regional stream-monitoring network of school and public volunteer groups;
Strengthen public awareness of the rich cultural and artistic heritage of the Catskills.
Sponsor conferences, round-tables, forums and workshops to
bring together stakeholders and policy makers.
The Catskill Center believes that the Belleayre Project represents irresponsible land use planning and development and is ill suited to Catskill Park, due, in part, to its scale. The project is unprecedented in size, within not only the Catskill Region but indeed, the entire northeastern United States. A project of this type is not compatible with the character or values of the region's local communities. The Belleayre Project will also require dramatic disruption in a particularly environmentally sensitive and valuable area. Moreover, the Belleayre Project could be the first step towards the requirement for New York City to provide filtration for its water supply which would significantly impact the Catskill communities and undermine the New York City Watershed Agreement.
Development of this Project is in direct contravention to the planning, educational, monitoring initiatives, the advocacy work, and technical assistance the Center has long provided to users of the area's resources and undertaken on behalf of the area. Its members live and work in the affected area and enjoy the resources that will be irretrievably damaged by this Project.
E. Friends of Catskill Park
SEQ CHAPTER \h \r 1 Friends of Catskill Park ("FCP"), which was organized in April 2001, is an all-volunteer grassroots organization based in Shandaken, New York, which lies within New York's Catskill Park and the New York City Watershed. FCP's mission is to assist in the preservation and enhancement of Catskill Park, the communities within the Park, and to help safeguard the Park as a wild and natural heritage for all New Yorkers to experience and enjoy for generations to come. Friends of Catskill Park was established in response to the proposed Belleayre Resort at Catskill Park which is the largest single development ever proposed for the Central Catskills. FCP is a project of the Open Space Institute, Inc., which serves as an incubator for such projects, conferring 501(c)(3) status and supplying administrative support.
FCP currently has approximately 700 supporters. They include residents of the Central Catskills, the area that would be the most directly impacted by the Belleayre Resort; residents from throughout New York State who frequent the Park and State Forest Preserve and use and enjoy the resources; and residents from New York City who want the New York City Watershed protected from degradation.
The Catskill Park is the second largest accumulation of ''forever wild'' land in New York State, second only to the magnificent Adirondack Park. It is especially unique because it is a prized wilderness within just 2 hours of one of the largest cities in the world and it contains a substantial part of the New York City Watershed. FCP's mission is to protect the fragile balance that currently exists among the Catskill Park, the New York State Forest Preserve within the Park, the New York City Watershed and the communities within the Park, all which co-exist harmoniously and serve a wide range of needs throughout the state.
F. Zen Environmental Studies Institute
Zen Environmental Studies Institute ("ZESI") is a 501 (c) (3) not-for-profit environmental organization with training facilities on Raquette Lake in the Adirondacks and on the Esopus River in Mount Tremper. ZESI's Mount Tremper facility, which is located within miles of the proposed Belleayre Project is a 35-acre site that contains approximately 15 acres of ecologically fragile wetlands. Much of ZESI's ecological training and studies take place in these wetlands which are in danger due to the proposed creation of the Belleayre Resort by Crossroads Ventures.
ZESI is concerned that the creation of large areas of non-porous surfaces will result in substantially more runoff than the property currently experiences when the Esopus river is in flood stage. As a result, ZESI is concerned that its wetland property will be damaged. ZESI is also concerned that golf course pesticides and fertilizers, chlorinated hydrocarbons and phosphorous-containing chemicals may find their way into the Esopus in spite of the detention ponds and filtration catch-basins proposed by the developer. ZESI's analysis of the DEIS and the Belleayre Project indicates that much of what is being proposed is based on speculation, rather than experimentally verifiable data. If the Belleayre Project were built, both ZESI and its members who use and enjoy the wetlands located on ZESI's property will be adversely affected.
G. Pine Hill Water District Coalition
The Pine Hill Water District Coalition ("Water Coalition") is a 501(c) 4 not-for profit organization formed to protect the water supply and quality of the Pine Hill Water District and to advocate on behalf of people who use and enjoy the water resources of Pine Hill, New York in the Town of Shandaken. The Water Coalition's 70-100 members live in and around Pine Hill; most of them currently have water supplied by the municipally owned Pine Hill Water District which was formed in 2003. Several members of the Water Coalition own or have owned and/or managed water resources in the District which either currently or historically supply water to the hamlet of Pine Hill.
The potable and non-potable water resources proposed for the Belleayre Resort at Catskill Park are inaccurately described. Generally, the DEIS overestimates the supply, especially during drought conditions, and under-estimates current and future use, both of the proposed resort and of the hamlet of Pine Hill.††In addition, the water resources considered and proposed for use at the resort include water resources located within the hamlet of Pine Hill have been historically utilized to supply water to the hamlet and are needed to meet Pine Hill's current and future water needs.
H. Catskill Heritage Alliance
Catskill Heritage Alliance ("the Alliance") is an unincorporated membership organization formed for the purpose of preserving the harmony between the villages of the central Catskills and the surrounding wilderness through community revitalization, open space conservation, and environmental protection. The Alliance has approximately 300 members and supporters, most owning property or residing in Shandaken, New York, and others frequenting the Catskill Mountain region for recreational or business purposes.
The Alliance has analyzed and critiqued multiple aspects of the proposal of Crossroads Ventures to build a golf-oriented resort facility on the ridges east and west of the Belleayre ski resort. In opposition to material presented in the Draft Environmental Impact Statement (DEIS), the Alliance claims the following: 1) the economic interests of the communities involved, particularly Shandaken, are not served by the proposed resort; (2) the fiscal impacts and changes in community character engendered by the resort would harm the communities involved by draining resources needed for more sustainable forms of tourism and hamlet revitalization; (3) the DEIS does not adequately describe and quantify potential environmental adverse impacts, including adverse impacts to protected open space, of the proposed resort; 4) the DEIS presents no evidence of broad-based community support for the proposed resort; and 5) the DEIS does not adequately identify and describe potential alternatives to the proposed resort.
The Alliance also claims that the review process of the proposed project has been flawed in major respects, including omission of relevant consideration of other private and governmental developments within the same region (e.g., the Catskill Mountain Railroad and proposed expansions of the Belleayre Ski Center) and other procedural errors (e.g., inadequate time provided for review of the DEIS, which was itself presented in unwieldy and poorly accessible formats). Finally, the Alliance joins with the Pine Hill Water District Coalition in objecting to use by the project of water assets located within Pine Hill and historically utilized by the hamlet and to any water uses that harm current water users or limit the natural and anticipated growth of the hamlet.
I. Theodore Gordon Flyfishers, Inc.
The Theodore Gordon Flyfishers ("TGF"), a dedicated group of five hundred members, including conservationists and anglers, who are deeply concerned with the future of the Esopus Creek and its ecosystem on Belleayre Mountain, including Birch Creek and Lost Clove Brook.
TGF was founded during the 1960's to protect the rivers of the Catskills from potential damage associated with construction and development along their banks. TGF sponsors programs such as "Trout in the Classroom," an environmental education program that has been integrated into the curriculum of over 80 classrooms throughout New York City and State to help develop in children an understanding of the State's shared aquatic resources. TGF's members have served as educators on various subjects and as advocates for many different rivers during the past 40 years. However, TGF considers the rivers of the Catskill region to be its "home waters". Most of TGF's members reside in the tri-state area of New York, Connecticut and New Jersey, some of whom reside within the borders of the Catskill Preserve. TGF considers protection and conservation of the Catskill waters to be its primary goal and purpose.
Nestled in the Catskill Mountains, the Esopus Creek is one of several world class trout streams in this region that support sizable wild trout populations. The trout streams of the Catskills are revered among fishermen across the nation as the birthplace of American flyfishing. As a vital trout producing stream, the Esopus Creek was praised by Theodore Gordon for its significant population of rainbow trout. The Esopus is a historical and recreational treasure of the Catskills that continues to attract thousands of anglers every year and thus, it deserves to be protected.
J. New York Public Interest Research Group
The New York Public Interest Research Group ("NYPIRG") is New York State's largest non-profit, non-partisan student directed research and advocacy organization. NYPIRG's primary areas of focus are on environmental protection, public health and government accountability.
NYPIRG's headquarters are located in New York City, with regional offices in Albany, Buffalo and Long Island, and 20 college campus chapter offices throughout the state, including New Paltz in the mid-Hudson Valley. NYPIRG's environmental project currently focuses on environmental and public health, including drinking water protection, notification and reduction of pesticide use, clean air and energy, and toxic site clean-ups.
NYPIRG has approximately 60,000 citizen supporters and seeks to empower, train and educate students and other community members and encourage their participation in the public decision-making process through organizing and advocacy efforts to address significant problems affecting the health, environment, democratic institutions and quality of life for New York State's residents.
As negotiators of, and signatories to, the 1997 New York City Watershed Memorandum of Agreement ("MOA"), NYPIRG is committed to overseeing the implementation and enforcement of the MOA and working with watershed stakeholders to ensure that the drinking water supply for more than nine million New Yorkers remains high quality.
In addition to the Watershed Agreement, among our other major environmental achievements, NYPIRG was instrumental in passing the Pesticide Neighbor Notification bill, which allows counties to pass local laws requiring commercial lawn applicators to provide written notice to abutting properties at least 48 hours prior to most lawn pesticide applications and led efforts to strengthen and reauthorize the state's toxic waste site clean up law, commonly known as Superfund.
K. Sierra Club
Sierra Club is a national, non-profit environmental and conservation organization incorporated under the laws of the State of California. The Sierra Club is dedicated to the protection of public health and the environment. The Sierra Club joins in the Petition for Party Status on behalf of itself and its adversely affected members. The Sierra Club has more than 700,000 members nationwide, 43,000 of whom live in New York. The Sierra Club is dedicated to enjoying and protecting the wild places of the Earth; to practicing and promoting the responsible use of the Earth's resources and ecosystems; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. Many members of the Sierra Club use and enjoy the Catskills and other resources that would be adversely affected by the Belleayre Project.
The Sierra Club's concerns encompass the enjoyment and protection of the natural and human environment around the area of Catskill Park. The Sierra Club's particular interest in this case stems from the past, present, and future harm to the environment that would be caused by the Belleayre Project. Sierra Club members reside, work, and recreate in the areas impacted by these facilities. Sierra Club members have an interests in protecting New York City drinking water supply. Sierra Club members have participated in agency proceedings related to the permit.

IV. Issues for Adjudication and Offers of Proof
6 N.Y.C.R.R. ß 624.5(b)(2)(i) and (ii))
CPC contends that the Belleayre Project will not meet the regulatory or statutory standards set forth in the Environmental Conservation Law and the State Historic Preservation Act and, therefore, its permit applications must be denied.
An issue is adjudicable if it is proposed by a potential party and it is both substantive and significant. In accordance with 6 N.Y.C.R.R. ß 624.4 (c)(2), 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." The issues presented by the CPC, through its experts, are substantive and significant as defined in 6 N.Y.C.R.R. ß 624.4.
Based on the expert testimony offered in the Petition, CPC contends that DEC will be unable to issue findings pursuant to SEQRA for the Belleayre Project. Pursuant to 6 N.Y.C.R.R.ß 617.11 (d) (5), DEC must, "certify that consistent with social, economic and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable." The DEIS fails to meet the requirements of SEQRA; therefore, the Commissioner will be unable to issue positive findings pursuant to SEQRA.

A. Visual and Aesthetic Impacts
CPC contends that the Belleayre Project presents substantive and significant issues for adjudication since it will result in significant adverse visual impacts which have not been and cannot be mitigated by Crossroads Ventures. Therefore, Crossroads Ventures' permit applications must be denied.
CPC will present the testimony of Mr. Peter J. Smith, AICP, MCIP, RLA; Ms. Mary Kopaskie, AICP, MCIP, RPP and Mr. Danny Sundell, RLA, ASLA, that the Belleayre Project will result in significant adverse visual and aesthetic impacts. The curricula vitae of Mr. Smith, Ms. Kopaski and Mr. Sundell are attached hereto as Exhibits "CV-A", "CV-B " and "CV-C ". Specifically, Mr. Sundell and Mr. Smith will testify to the facts and conclusions set forth in their report, which is attached hereto as Exhibit "A", including but not limited to the following:
1.) The methodology used by the DEIS does not fully comply with the DEC Visual Impact Assessment Policy in that "line-of-sight" profiles are not included; at a minimum, these should have been completed for several of the points along Route 28 that were identified in the DEIS as "potentially visible areas along roadways and from the Village of Pine Hill. As such, the method used in the DEIS Visual Impact Study (Appendix 21) does not include the minimum required by the DEC Policy on Assessing and Mitigating Visual Impacts.
2) Based on a review of the surrounding topography, a worst-case scenario for visual impacts should be completed from across the valley; namely Rose Mountain, Monka Hill and Hog Mountain. The visual impacts from the Village of Pine Hill and Route 28 would also be the most frequently observed due to the development there and would likely have the greatest impact on community character, however these views have not been included in the DEIS. No visual assessment or simulations were completed from the Pine Hill hamlet, the Belleayre summit and slopes or Route 28, the areas most likely to be impacted within the five-mile radius.
3.) Based on a review of the surrounding topography, the worst-case scenario for visual impacts will be from across the valley; namely Rose Mountain, Monka Hill and Hog Mountain. The visual impacts from the Village of Pine Hill and Route 28 would also be the most frequently observed due to the development there and would likely have the greatest impact on community character, yet none of these views were included in the DEIS.
4.) The following significant adverse visual impacts should have been evaluated in the DEIS but were omitted:
Visual impacts of blasting the top of a currently forested and undisturbed mountain with no consideration to the changes in topography ;
Visual impacts and potential erosion of stockpile areas and the lack of a stockpile management plan;
Visual impacts of clear-cutting over 500 acres and turning much of the area into lawned golf courses and buildings;
Loss of forest land that includes the destruction of over 278,000 trees;
Light pollution, including night glow, lighting visible from an elevation perspective and glare from lighting during the winter (snow glare), on an historically "dark" region;
Impacts on panoramic views and vistas along Route 28 and from other places within a five mile radius of the project site.
Conclusion
The Belleayre Project will result in significant adverse impacts to community character, the economy of the region and to the region's cultural and historic resources which cannot be mitigated and which are not outweighed by the social, economic and other essential considerations. As a result, the Commissioner will be unable to issue the required legal findings pursuant to 6 N.Y.C.R.R. ß 617.11(d)(5). CPC requests that the issue of the Belleayre Project's significant adverse impacts on community character should be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
B. Groundwater and Surface Water Impacts
CPC will present evidence that the Belleayre Project raises substantive and significant issues for adjudication since it will result in significant adverse impacts to the area's surface and ground water resources which have not been and cannot be mitigated by Crossroads Ventures. The Belleayre Project will result in violation of New York State Water Quality Standards and unduly stress the region's water resources. As a result, the valuable and unique fisheries will be irrevocably degraded and potentially destroyed. Accordingly, Crossroads Ventures' permit applications must be denied.
The offer of proof submitted herewith prepared by Andrew Michalski, Ph.D., CGWP, Michalski & Associates, attests to the significant adverse surface and ground water impacts that will result from the construction and operation of the Belleayre Project. Dr. Michalski's curriculum vitae is attached hereto as Exhibit "CV-D". His report on Groundwater Issues of the DEIS For the Belleayre Resort is attached hereto as Exhibit "B".
Dr. Michalski will testify to the findings and conclusions in his report including but not limited to the following:
1) The proposed groundwater withdrawal rates from Rosenthal wells R2 and R1, required to meet potable and irrigation water demands for the eastern portion of the project (Big Indian Plateau), cannot be sustained over dry weather periods. The Silo A Spring cannot be used as a backup supply source during such periods because the flow in Crystal Spring Brook would fall below the criterion of 30% of average flow ("the Tennant threshold").
2.) Even at sustainable reduced rates, groundwater pumping at the two portions of the project (the eastern Big Indian Plateau and western Wildacres Resort) would significantly reduce the baseflows in Crystal Spring Brook, Birch Creek, and Emory Brook. Existing streamflow measurements for dry weather months show that Crystal Spring Brook is already losing much of its baseflow along the segment above the confluence with Birch Creek, and Birch Creek is barely gaining any water within its two-mile segment below the confluence with Crystal Spring Brook. The amount of further reduction in the Birch Creek baseflow attributable to the proposed pumping would approach withdrawal rates from the Rosenthal wells, as the wells would subtract water from the creek. The lower segment of Crystal Spring Brook might completely lose its baseflow due to the combined effects of increased pumping rates at the two portions of the proposed resort and at the existing Belleayre Ski Area, and through flow short-circuiting along open holes of numerous deep bedrock wells installed within and adjacent to the project area. This effect will further be exacerbated by the proposed expansion of the Belleayre Ski Center.
3) Extensive lowering of bedrock water levels due to pumping at the Rosenthal supply wells, estimated to exceed 45 to 50 feet within a half-mile radius of the wells, could adversely impact a number of residential wells located outside the Pine Hill Water Company service area. Cumulative impacts of concentrated bedrock pumping at the two portions of the project and at the Belleayre Ski Center include well interference effects and the potential for inducing an upward migration of saline water. Expansion of the Belleayre Ski Center will increase the potential for these impacts to occur.
4) Re-evaluation of bedrock hydrogeology and spring capture areas, with due accounting for structural effects of a stacked multi-aquifer bedrock and the role of open holes, should be conducted by the Applicant in order to assess and quantify groundwater-related impacts and to develop reliable monitoring of such impacts.
In addition, Dr. James Thaler, author of Catskill Weather, will testify that the use of the Slide Mountain precipitation data overestimates the precipitation which will fall in the area of the Project. Dr. Thaler's curriculum vitae is attached as Exhibit "CV - E". Dr. Thaler's letter supporting the analysis prepared by Trout Unlimited is attached as Exhibit "C ". The report prepared by Trout Unlimited is attached as Exhibit "D ". T
The 60.24 inch Slide Mountain precipitation number is relied on in the DEIS, in terms identical to that of the water budgets, that, "direct precipitation input to the 3.5 acre irrigation ponds, less the expected evaporation losses, will be approximately 3.8 million gallons per year, on average." The further ñ and critical ñ claim is that this contribution from runoff will reduce demands on proposed irrigation well Rosenthal no.1, adjacent to Birch Creek. As annual average precipitation for Belleayre Mountain is roughly 28% less than for Slide Mountain, 3.8 million gallons is overly optimistic. As a result, more water over longer periods of time will be pumped from the Rosenthal well in order to make up the shortfall and to keep the Big Indian golf course green in dry weather. However, as indicated in the expert reports, there isn't enough water in the aquifer and (2) pumping the Rosenthal wells will take water from Birch Creek.††
†
C. Water Supply
The CPC contends that the use of the water resources and systems identified in the DEIS (including Water Supply Applications and Water Conservation Programs) for the Belleayre Resort project raise substantive and significant issues for adjudication since the DEIS and water supply applications fail to demonstrate that it can meet the criteria set forth in ECL ß 15-1503(2). Neither the DEIS nor the application demonstrate that: the potable water resources proposed for the Big Indian Plateau are adequate as required by, 6 NYCRR 601.5(k)(5) and 601.6 (b) (4); the use of the potable water resources proposed for the Big Indian Plateau are just and equitable (as required by 6 NYCRR 601.5(k)(6) and 601.6 (b)(6)); the use of the potable water resources proposed for the Big Indian Plateau is necessary as required by 6 NYCRR 601.5(k)(1), 601.6 (b) (1), and 601.6 (B)(2). In addition, the DEIS fails to provide essential documentation regarding the applicant's ability to satisfy all of the legal and regulatory prerequisites to use of the identified water supply resources for both the Big Indian Plateau and the Wild Acres portions of the proposed resort.
The CPC will rely on the testimony of Mr. Paul Rubin, principal hydro geologist with HydroQuest, a hydrological consulting firm based in Stone Ridge, New York, and Andrew Michalski, Ph.D., CGWP, Michalski & Associates. Mr. Rubin's curriculum vitae is attached to this Petition as Exhibit "CV-F ". Mr. Rubin's letter to DEC which summarizes the substantive and significant issues concerning the impacts to the potable water supply is attached as Exhibit "E". The CPC will also submit testimony by Richard Schaedle, Chairman of the Pine Hill Water District Coalition and Matthew Persons, a member of the Water Coalition; both Mr. Schaedle and Mr. Persons have extensive experience in the management of the water system and water resources serving Pine Hill.
Since May of 2001, the Alliance and the Water Coalition have contested the data and conclusions of the water supply sections of the DEIS in the context of the SEQRA review of the proposed Belleayre Project and in the context of the SEQRA review of a modification to the water supply permit now held by the Town of Shandaken for the Pine Hill Water District (Permit # 3-5150-00365/00001). The Alliance and the Water Coalition contend that the engineering and hydrological studies supplied in support of the Pine Hill water supply permit contain tables, charts, data, and analyses drawn from, and in many cases, identical to the materials offered in support of the water supply application for the Big Indian Plateau. These groups have argued throughout the DEC's review of this project that there simply is not enough water on the eastern portion of the Belleayre ridge to supply the water needs of the hamlet of Pine Hill, the Belleayre Ski Center, and a new 2,000-acre golf course resort. With the proposed expansion of the Belleayre Ski Center, the available potable water supply will further decrease. Mr. Rubin's affidavit in the prior litigation and his letter to DEC are attached hereto as Exhibit "F ".
Because the water resources in the two permits applications overlap, the Alliance and the Water Coalition, joined by the Natural Resources Defense Council, brought suit against the DEC in November of 2002, seeking an adjudicatory public hearing in regard to the DEC's decision at that time to allow Crystal Spring-Silo A, a water resource now proposed for use by the resort, to be removed from the Pine Hill Water Supply Permit by Mr. Dean Gitter during his ownership of the Pine Hill Water Company. The suit also raised issues of segmentation of review under SEQRA, given Mr. Gitter's role in the three companies (Crossroads Ventures, LLC; Silk Road Organization of NY, and the Pine Hill Water Company) that came to own all of Pine Hill's public water resources during the period between 2000 and 2003. Although the court declined to require a hearing on the modifications to the Pine Hill Water Supply Permit, the ruling was based in part on the opportunity for review of the use of Crystal Spring-Silo A by the resort at a later point: "Most importantly, any potential environmental impacts of the proposed Resort on the Pine Hill's water supply will have to be fully addressed during the resort SEQRA review." (Supreme Court of the State of New York, Albany County, Memorandum and Judgment, Index No. 7343-02, February 14, 2003, p. 18; emphasis in original)
The Water Coalition will be submitting, concurrent with the review of the Belleayre Project, a Water Supply Application under 6 N.Y.C.R.R. ß 621.14. The application will demonstrate that the current Pine Hills Water Supply Permit (permit number 3-5150-00365/00001) must be modified based on materially false and inaccurate statements in the Pine Hills permit application; newly discovered material information and a material change in environmental conditions; and noncompliance with the Environmental Conservation Law and implementing regulations related to the water supply permit.
Mr. Rubin and Dr. Michalski have evaluated the DEIS and found it to be substantively deficient. They will testify that their analyses have identified substantive and significant flaws, as outlined below:
1) the applicant has not shown that the water resources proposed for the Big Indian plateau are adequate (as required by 6 NYCRR 601.5(k)(5) and 601.6(4)). Specifically, the applicant has failed to document sustained yields of all the wells (and particularly Rosenthal Well # 1 and Rosenthal Well # 2) and of the Crystal Spring-Silo A, proposed as a backup source of potable water supply in the DEIS, during severe drought conditions. Instead, the periods of measurement provided are insufficiently dry, the estimates of flows are overly generous, and the methods of assessing low flow conditions are inappropriate. In addition, the possibility of interconnection of the wells (and possibly with springs in the same aquifer) requires evaluation before the sustained yields of the wells can be considered verified. Finally, even if taken as valid, the flows reported for Crystal Spring-Silo A, especially given the requirement to limit its use during low flow conditions (see DEIS Section 3.2.2.K, page 3-42), show it to fall below the flows required for an auxiliary source as determined by the New York State Department of Health and the applicable Ten States Standards;
2) the applicant has not shown that the use of the water resources proposed for the Big Indian plateau are just and equitable (as required by 6 NYCRR 601.5(k)(6) and 601.6(6)). Specifically, the adverse hydrological impacts of the water uses proposed in the DEIS, both for potable water and for irrigation, have been underestimated; the possibility of interconnected wells has not been fully evaluated; the effects of additional large withdrawals on the aquifer have not been sufficiently gauged; the impacts of depleting stream flows, especially on fish and fish breeding, have not been fully assessed and mitigated; and the present and future competing water needs of both the hamlet of Pine Hill and the Belleayre Ski Center have not been fully explored. The proposed expansion of the Belleayre Ski Center further emphasizes the need for a thorough evaluation of the water needs of the Belleayre Project and the hamlet of Pine Hills.
3) the applicant has not shown that the use of the water resources proposed for the Big Indian plateau is necessary (as required by 6 N.Y.C.R.R. ß ß 601.5(k)(1), 601.6(1), and 601.6(2)). Specifically, alternative water sources (i.e., additional wells) have not been fully evaluated, and alternative uses (e.g., smaller resort, redesign as hiking and biking or wilderness retreat center, and others) that are less water-use-intensive have not been seriously considered. A reduced scale alternative will also ease the pressure on the available water supply which will result from the expansion of the Belleayre Ski Center.
None of these points relies on challenges to the applicant's ownership of the Crystal Spring -Silo A. Instead, this analysis rests on the permitting requirements for installing a new water supply system, developing sources of water supply in connection with such water supply system, and entering into contracts or other agreements for the supply of water (6 N.Y.C.R.R. ß 601.1-8). The CPC will raise legal questions regarding a covenant on the deed for Crystal Spring-Silo A -- restricting use of its water to Ulster County -- which is invoked by the proposed use of its water for a resort spanning Ulster and Delaware Counties. Finally, the CPC will argue that the DEIS does not supply sufficient legal and engineering detail regarding the Water Supply Application for the Village of Fleischmanns to complete an adequate analysis.
Conclusion
The DEIS fails to provide accurate and sufficient information needed to justify the use of the Rosenthal Wells and Crystal Spring-Silo A for the Big Indian Plateau. It also fails to provide sufficient information to justify use of the water supply system of the Village of Fleishmanns for the Wild Acres and Highmount Estates portions of the resort. As a result, the Commissioner cannot issue the findings required pursuant to 6 N.Y.C.R.R. 617.11 (d)(5). Therefore, Crossroad's Ventures permit applications should be denied.
D. Noise Impacts
CPC contends that the Belleayre Project presents substantive and significant issues for adjudication since it will result in significant adverse noise impacts which have not been and cannot be mitigated by Crossroads Ventures. Therefore, Crossroads Ventures' permit applications must be denied.
The CPC will present the testimony of Peter J. Smith and Mary Kopaskie who will testify that the DEIS failed to mitigate the noise generated from the Belleayre Project notwithstanding that the noise impacts will be intrusive. Mr. Smith and Ms. Kopaskie will testify to the following:
1.) The Sound Impact Study (SIS) for the DEIS assumes that increases in
existing sound levels of 9 dBA or less are: "insignificant, temporary construction noise" . The DEIS improperly refers to the noise generated at these levels as "insignificant". Pursuant to DEC' Policy Assessing and Mitigating Noise Impacts ("Policy"), DEC refers to these levels as intrusive and may cause complaints. Yet, these impacts are dismissed in the DEIS without any discussion of mitigation. Clearly, according to the DEC Policy, further consideration is needed.
2.) The DEIS states that typical blasting noise levels range between 93 to 94 dBA at a distance of 50 feet. The DEIS also states that blasting noise levels will be only 46 dBA for the proposed project which is 4 dBA below the existing ambient daytime average sound level. The existing daytime sounds, as documented in the DEIS, range from 41 to 50 dBA and are characterized by "wind rustling through the trees" and the sound of a "nearby creek." The DEIS wrongfully implies that, through noise attenuation, these activities will not increase the current noise levels in the area. The DEIS erroneously concludes that: "blasting for this project is not to significantly contribute to overall Project construction noise." Blasting the mountaintop will create an amphitheater effect and the noise levels will be in excess of existing, ambient wind and creek levels. This is one of the factors which the DEC Policy requires that the DEIS consider. See DEC Policy page 10.
3.) Increased noise levels will impact local neighborhoods during construction of the proposed Belleayre Project. The cumulative effects of blasting and construction will increase the noise levels from levels associated with a rural community to those at equal to an urban industrial area. See DEC Policy page 20. Additionally, the noise levels will exceed ambient levels of a rural setting and will have significant impacts on residents. Finally, the noise mitigation plans are not clearly defined and do not state how noise will be regulated to control the impacts. This is required by the DEC Policy. See DEC Policy pages 23-26.
4.) The community character noise impacts that have not been adequately evaluated in the DEIS include:
Duration of noise, especially in the summer months when most residents are outside and windows are open
Noise impacts from trucks hauling fill (over 230,000 cubic yards) and construction materials throughout construction
Noise impacts from trucks and vehicles to service the Resort once it opens
Increased traffic noise from Resort users
Increased traffic noise from Belleayre Ski Center users
Conclusion

The Belleayre Project will result in significant adverse noise impacts which will have long term detrimental effects to the surrounding communities which cannot be mitigated and which are not outweighed by the social, economic and other essential considerations. The DEIS did not take a hard look at these adverse impacts and does not provide the Commissioner with an adequate legal or technical record on which to predicate findings pursuant to 6 N.Y.C.R.R.ß 617.11(d) (5). Consequently, the Belleayre Project's permit applications must be denied. CPC requests that the issue of the Belleayre Project's adverse noise impacts should be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.

E. Traffic Impacts
CPC contends that the Belleayre Project will result in substantive and significant traffic impacts which require adjudication since the DEIS' traffic impact analysis undervalued the impacts and underestimated the current traffic. CPC's experts will demonstrate that the Belleayre Project's traffic impacts have not been properly evaluated in the DEIS and that significant elements have been omitted from the analysis.
CPC will offer the expert testimony of Brian T. Ketcham, P.E., whose curriculum vitae is attached as Exhibit "CV-G". The report prepared by Community Consulting Services is attached as Exhibit "G ". In addition, Ferrradino & Associates, Inc. evaluated the traffic impact analysis in the DEIS and found that it to be inaccurate and incomplete. The "Ferradino Report" is attached as Exhibit "H". Mr. Ketcham has reviewed the Ferradino report and endorses its analysis and conclusions and is prepared to testify to the issues presented in the Ferradino report, many of which are consistent with and support the findings set forth in Mr. Ketcham's report.
Mr. Ketcham will testify that, in his expert opinion, the DEIS fails to address the actual traffic impacts from the Belleayre Project. He will testify to the findings and conclusions in his report including but not limited to the following.
1.) The DEIS understates the magnitude of traffic associated with the Belleayre Project and the magnitude of background growth which is likely to occur. The underreporting of future conditions is based, in part, on the selection of 2008 as the year of the traffic analysis despite it being only two years into the construction schedule. If the year 2014 were used, which is the completion date, the growth in background traffic on Route 28 would be double the traffic volume considered in the DEIS. Mr. Ketcham's report is attached hereto as Exhibit "I". The DEIS also fails to consider the growth rate projected for the Ski Center from 5,000 skiers in 2003 to approximately 8,000 skiers by 2008. In addition the traffic projections for the Belleayre Project are based on the median to low traffic rates set forth in the Institute of Transportation Engineers ("ITE") Trip Generation Manual. The ITE presents not only average conditions in the field it also includes minimum and maximum rates observed in the field. Notwithstanding that the Belleayre Project will depend on its success in attracting visitors and guests, the DEIS does not consider the traffic generated based on higher occupancy associated with a highly successful resort.
2.) The DEIS also fails to consider the effects of the Belleayre Mountain Ski Center expansion. Use of the Ski Center has increased dramatically since the 1999-2000 baseline season for the DEIS. The increased use of the Ski Center is neither reported in the DEIS nor is the increased use of the Ski Center associated with the proposed expansion.
3.) The DEIS utilizes inappropriate traffic count figures for analyzing the worst case traffic impacts. The use of Martin Luther King, Jr. holiday weekend traffic counts as the worst case scenario does not reflect the significant number of days with a higher volume of ski attendees during the 2002-2003 period. Counts taken by Mr. Ketcham in the February of 2003 and included in Exhibit "I " reinforce this observation. Mr. Ketcham has modeled the intersection of Route 28 and County Road 49A, the entrance to the Belleayre Ski Resort, using both Saturday P.M. peak hour volumes in the DEIS and volumes more likely to occur in 2014 with the full Ski Resort build out and full Resort occupancy. Exhibit "I" presents the results for a signalized intersection: according to the DEIS, traffic at the intersection will operate at a Level of Service (LOS) C; with more realistic 2014 worst case traffic, it will operate at a failed condition, LOS F.
4.) The DEIS fails to account for shuttle bus operation between Big Indian and the Ski Center. Despite the assertion that 80% of trips to and from the Ski Center will be by shuttle bus, the DEIS does not include shuttle bus trips. The DEIS fails to account for a reasonable number of non-shuttle bus trips (i.e., auto trips) based on the desires of skiers to arrive promptly at the Ski Center and avoid undue delays associated with shuttle bus transportation. The Belleayre Project generated trips will likely increase to 1000 trips in the Saturday P.M. peak hour, more than doubling the traffic volumes measured in 2003.
The DEIS fails to assess the potential doubling of parking spaces and
potential alternative parking locations proposed by expansion of the Ski Center and the necessary increase in Ski Resort shuttle bus traffic; temporal distribution of trips and the associated impacts during the various times of day and between competing uses; vehicle occupancy factors; current bus service to the Ski Center and existing shuttle bus service; accident and safety impacts or conditions in the Route 28 corridor.
The DEIS does not account for any non-ski trips, such as those that are
made to off-site locations to expend the estimated $19.2 million in annual sales, which are forecast to be made each year.
Conclusion

The Belleayre Project will result in significant adverse traffic impacts which will have long term detrimental effects to the surrounding communities which cannot be mitigated and which are not outweighed by the social, economic and other essential considerations. The DEIS did not take a hard look at these adverse traffic impacts and does not provide the Commissioner with an adequate legal or technical record on which to predicate findings pursuant to 6 N.Y.C.R.R.ß 617.11(d) (5). Consequently, the Belleayre Project's permit applications must be denied. CPC requests that the issue of the Belleayre Project's adverse noise impacts should be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
F. Aquatic Habitat
CPC contends that the Belleayre Project raises substantive and significant issues for adjudication since the DEIS failed to adequately address the environmental impacts of the water withdrawal on the area's surface waters and aquatic habitat in the vicinity of the project. The CPC will rely on the testimony of Dr. Piotr Parasiewicz to demonstrate that the DEIS fails to adequately address the catastrophic impacts which the water regime for the Belleayre Project will have on the area's aquatic resources. Dr. Parasiewicz' curriculum vitae is attached as Exhibit "CV-H ". Dr. Parasiewicz' expert report is attached as Exhibit "J ".
Dr. Parasiewicz will testify to the findings in his report including but not limited to the following:
1.) The proposed Belleayre Resort at Catskill Park is located in the headwaters of Lost Clove Brook and tributaries to Birch Creek, (third and second order tributaries of Esopus Creek), as well as in headwaters of tributaries to Emory Brook (a second order tributary of the Bush Kill). These high gradient, coldwater streams are classified as Trout Spawning streams, or are recommended for upgrade to trout spawning classification, and support a relatively vibrant fish fauna. Electrofishing data collected in 2000 by the NYS DEC (Mike Flaherty, Region 3) show a fish community dominated by trout species. However, differences were noted in the faunal composition between upstream areas dominated by native brook trout and the lower portion of Birch Creek (below the confluence with Crystal Spring Brook), dominated by brown and rainbow trout. The number of juvenile trout recorded indicates healthy reproduction in these streams. The accompanying species include low numbers of slimy sculpin, longnose dace, blacknose dace and white sucker, as is characteristic of New York coldwater streams. The existing electrofishing data provides only a rough assessment of the relative density of species within the fish community, but the overall community appears appropriate for this type of stream.
Upstream of Pine Hill, the habitat quality of Birch Creek appears relatively unimpaired. It has diverse habitat features and is well shaded, meaning low water temperatures can be anticipated. However, the woody debris dams that provide important habitat for brook trout are infrequent. Further downstream, between Pine Hill and the confluence, substantial channel modifications can be observed. Lack of vegetation along some reaches of this section of the stream corridor may result in elevated water temperatures. This would help explain the lower number of brook trout recorded.
2.) The Belleayre Project will result in the following impacts:
reduction of ground water levels and loss of base flow in adjacent streams;
increased duration of low flows;
increased water temperature;
increased pollution levels;
modification of stream morphology;
reduction of fish densities and a shift of community structure from one dominated by trout towards generalist, warm water species (e.g. bluegill). Convincing proof that this will be avoided has not been provided in DEIS documentation.
This habitat will be further stressed by the proposed expansion of the Belleayre Ski Center.

3.) Dr. Michalski's expert analysis indicates that flows in the evaluated streams are flashy, with a relatively low amount of ground water contributing to summer flows. These flashy conditions may be caused by shallow soils due to historic deforestation of the region (Parasiewicz 2000). This pattern is dramatic in the Catskill Mountains because of the high instability of post-glacial till that accelerates topsoil removal. The flashiness of flows is clearly visible on the Big Indian hydrograph. Flows in Catskill mountain streams can increase by a magnitude of 45 (see Exhibit "J ", Figure 1). Because of the low storage capacity of surface soils, another characteristic of the flow regime is an extended duration of low flows.
4.) During four summer and fall seasons recorded at the Big Indian gauge, stream flows remained under the 30% Tennant threshold for 63% of the time. During the drought years of 2001 and 2002, flows fell below the 30% threshold for 90% of the time and for over 70 days without interruption. In addition, flows can stay below the
10 % threshold (delineating poor fisheries) for a period of two weeks continuously. In Birch Creek, low flow durations are likely extended by early withdrawals of water for snow making starting in September. The usual consequences of extended duration and frequency of low flow conditions are elevated temperatures and pollution levels (see Exhibit "J", Figure 2). Canopy cover shading, variability in habitat structure, and a substantial base flow are essential factors in mitigating this impact.
5.) In Birch Creek, the primary impact of the proposed project on aquatic fauna will be through modification of its flow regime. This low flow regime will result from a reduction of flow in the river due to increased ground water pumping and surface withdrawals for snow-making and faster surface runoff due to increased impervious area, removal of forest cover, filling and fragmentation of wetlands and compaction of soils on the ski slopes. Increased runoff can result in higher peak flows, sediment transport and subsequent channel alteration. Despite the proposed detention ponds, increased stream flows could result in additional fine sediments being transported downstream also due to erosion processes below the ponds. Fine sediments reduce the interstitial space in the gravel substrate, reducing macro-invertebrate production as well as the survival of trout larvae (trout larvae actively utilize interstitial spaces immediately after hatching). A secondary effect of detention areas can be elevated temperature of pond water entering streams after a storm event. The removal of forest vegetation and reduction of wetlands will inevitably lead to reduced subsurface water storage capacity within the watershed, also contributing to lower stream flows during the summer months. Reduced storage could also potentially reduce recharge of ground water and lead to lower ground water intrusion into the streams.
6.) Using the data compiled by Dr. Michalski, in comparison with the present situation, the proposed project would conservatively increase withdrawals by 0.3 cfs which will result in a concomitant reduction in flow. Reduced flow means less wetted area (i.e. smaller river) which limits fish mobility and increases the vulnerability of small fish to predation as shallow margins are removed first. Reduced flows increase the separation between juvenile and adult trout habitats, forcing young fish to use high-risk locations. Lower water depth and flow velocities also create habitat that is much less suitable for fluvial specialists that require flowing waters. The expected result is a shift of the fish community structure from specialized species towards habitat generalists. More shallow, slower moving waters also warm faster, especially if ground water contributions are diminished. Reduced intrusions from underwater springs may reduce spawning success of trout and negatively affect their populations not only in Birch Creek but in entire Esopus system. In the winter, ground water intrusions increase water temperature in streams limiting creation of frazil ice. Lack of spring water can lead to creation of anchor ice that can impact fish larvae as well as channel morphology.
Additional impacts to fish habitat are associated with destabilization of the flow regime. Higher peak flows can modify channel geometry creating an over-widen channels as is the case on other rivers in the Catskills including the Beaver Kill. Reduced number of pools leads to less diverse habitat structure and reduction of canopy cover shading elevate summer temperatures even more. Increased sediment transport during higher flows could cause large deposition areas and even impact bridges and culverts in the watershed. These impacts will be exacerbated by the proposed expansion of the Belleayre Ski Center.
Conclusion
The DEIS fails to provide sufficient information to assess, or take a hard look at, whether the Belleayre Project will cause significant adverse impacts to the aquatic habitat in the area of the Project. Due to the complicated geological nature of the area and the project size, in order to adequately identify the impacts on stream flows and aquatic habitat, a precise watershed-wide hydrological model is required. In addition, in order to estimate the consequences of flow and morphological changes on resident fish fauna, a quantitative habitat model must be prepared in conjunction with the hydrological simulation. As a result, the Commissioner cannot issue the findings required pursuant to 6 N.Y.C.R.R. ß 617.11 (d)(5). CPC requests that the issue of the Belleayre Project's adverse impacts on fish habitat should be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
G. Impacts on the Forest Preserve
CPC contends that the Belleayre Project raises substantive and significant issues for adjudication since the DEIS failed to adequately address the significant adverse impacts to the Forest Preserve and recreational opportunities for visitors to the area. The CPC will rely on the testimony of Professor Chad Dawson to demonstrate that the Belleayre Project will result in substantial adverse impacts to the Forest Preserve land and resources due to the large increase in visitors to the area which the DEIS predicts the Belleayre Project will generate. Professor Dawson's curriculum vitae is attached as Exhibit "CV ñI". Professor Dawson's letter opinion is attached as Exhibit "K ".
Professor Dawson will testify that the DEIS predictions set forth in Appendix 26 indicate that the projected visitation will be approximately 637,800 visits to the Belleayre Project. The Belleayre Project will generate more than ten times the current annual reported use of the trail visits on all trails in all areas of the Catskill Park. Even assuming that each visitor will spend only one trip per year on Forest Preserve lands, the Belleayre Project will result in a seven hundred (700%) percent increase in use of the Forest Preserve trails. In anticipation that the visitors will be more likely to visit the Forest Preserve lands in proximity to the Belleayre Project, the intensity of the use will result in even greater adverse impacts. The DEIS fails to address these impacts. DEC has already acknowledged that the potential for overuse of the Forest Preserve lands presents its greatest danger even before the Belleayre Project was proposed. The Belleayre Project also undermines many of the values and goals set forth in the Catskill Park Master Plan.
Professor Dawson will testify that the potential biological and ecological impacts include trampled and disturbed vegetation, disturbance of breeding and nesting birds and animal behavior, changes in the ecosystem due to physical changes in the environment; physical changes to the trail system and visitor distribution and the resultant social conditions which will result from increased visitation and use of the Forest Preserve.
Conclusion
The DEIS fails to provide sufficient information to assess, or take a hard look at, whether the Belleayre Project will cause significant adverse impacts to the Catskill Forest Preserve. Due to the significant increase in visitors expected to at the Belleayre Project, the likely impacts to the Forest Preserve will be significant. Yet, the DEIS fails to evaluate the impacts to the Forest Preserve and the increased use of trails and resources which will result from the Belleayre Project. As a result, the Commissioner cannot issue the findings required pursuant to 6 N.Y.C.R.R. ß 617.11 (d)(5). CPC requests that the issue of the Belleayre Project's adverse impacts on the Forest Preserve should be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
H Wildlife and Habitat Impacts
CPC contends that the Belleayre Project raises substantive and significant issues for adjudication since the DEIS failed to adequately address the significant adverse impacts on wildlife, habitat and fauna. The CPC will rely on the testimony of Dr. Erik Kiviat to demonstrate that the DEIS fails to adequately attribute ecological significance to the biodiversity of the project site and the Belleayre Project's off-site impacts. Dr. Kiviat's curriculum vitae is attached as Exhibit "CV-J". Dr. Kiviat's report is attached as Exhibit "L". In addition, Dr. Michael Burger will testify concerning the Catskill Important Bird Area. The Audubon New York letter supporting the listing is attached as Exhibit "M" " and the resume of Dr. Burger is attached as Exhibit "CV-K ". Graham Cox will support the testimony of Dr. Burger. His curriculum vitae is attached as Exhibit "CV-L".
Dr. Kiviat will testify to the findings and conclusions in his report including but limited to the following:
1.) The area provides diversity and rich biological resources. For example, large areas of forest near the Long Clove Trail are dominated or co-dominated by beech which is likely unusual for the Catskill Mountains and may provide special biodiversity values associated with rare specialist insects, fungi or animals that use beech mast as a critical resource. In addition, Dr. Kiviat identified diverse communities of forest floor wildflowers, extensive hardwood forests, spring and seep habitats and streamside habitats. The site is also potential habitat for Northernmonkshood which is designated as a threatened plant species by the federal government.
2.) The zoological surveys in the DEIS were not adequate given the size of the site and its seeming diversity. For example ornithologists typically consider 3-5 visits per habitat to be sufficient to evaluate a site. Given the size of the site, its topography and variety, the 8 day survey undertaken for the DEIS was not sufficient to characterize the site. For example, the DEIS dismissed the possibility of the presence of significant bird species on the site. However, the site is included as part of the Catskill Important Bird Area as identified by scientists associated with Audubon New York.
In 1988, Audubon New York, in its initial round of identifying Important Bird Areas ("IBA") in New York State, which was published in 1998, identified significant parts of the†Catskill Park and New York City watershed†as Important Bird Areas using internationally recognized selection criteria. The list of criteria can be found in National Audubon's web site attached hereto as Exhibit "N". In its second round of research and analysis, which is on-going, Audubon New York will be modifying the IBA boundaries based on more thorough analyses using, among other tools, GIS data and integrating this information with the "GAP analysis" study prepared by the DEC and Cornell University on behalf of the United States Department of the Interior which indicated "gaps" in the protection of the State's biological resources. This further analysis being undertaken by Audubon New York supports including as part of the IBA tracts of Forest Preserve and adjacent properties to the south of the Route 28 corridor which are centered on the Belleayre Ski Center. However, the site is currently included for consideration and evaluation as part of an expanded Catskill Important Bird Area as identified by scientists associated with Audubon New York. Audubon New York's IBA technical advisory committee is currently evaluating the data prior to issuance of the revised Catskill IBA listing.
Forest fragmentation and parcelization will degrade the intact hardwood forest cover and likely will result in†an adverse impact on the assemblage of forest responsibility species; species that rely on the particular habitat of a region for their long-term conservation. This assemblage of forest responsibility species forms the core of the IBA identification for this particular Catskill site. The portion of the IBA on the Forest Preserve lands could be considered in the future for designation by DEC as a Bird Conservation Area (BCA), for which a management plan specific to protection of forest bird species would be prepared.
The Catskill Important Bird Area is one of the largest, most intact contiguous habitats for the assemblage of forest responsibility species in the Appalachian Mountains Bird Conservation Region of New York State. As mentioned, responsibility species are those that rely on the particular habitat of a region for their long-term conservation because they are found at high relative abundances and/or have a disproportionately high percentage of their populations in the particular Bird Conservation Region. The forest assemblage of the Appalachian Mountain Bird Conservation Region is composed of the following species: Black-and-white Warbler, Black-billed Cuckoo, Black-throated Blue Warbler, Blue-gray Gnatcatcher, Canada Warbler, Cerulean Warbler, Eastern Wood-Pewee, Hooded Warbler, Least Flycatcher, Louisiana Waterthrush, Northern Flicker, Rose-breasted Grosbeak, Scarlet Tanager, Sharp-shinned Hawk, Wood Thrush, Worm-eating Warbler, Yellow-throated Vireo. Many other more common species also nest within the region. While not all of the above-listed species breed within the Catskill Important Bird Area or on Belleayre Mountain, many do and all of the species are likely to utilize the region during migrations before and after the breeding season. The massive proposed Belleayre Resort would cause fragmentation of this habitat and would destroy the functionality of a significant segment of this important Bird Conservation Region.
3.) The zoological survey ignored rare or uncommon mammals which would be expected to be present in the well-developed forests and rocky habitats present at the site. The presence of the endangered Indiana Bat is dismissed notwithstanding that the habitat appeared suitable for maternity roosting. In addition, the site appears suitable for timber rattlesnake habitat which was all but ignored by the DEIS.
4.) The DEIS fails to identify or discuss the potential significance of the Belleayre Project on the extensive forests adjacent to the site. The site forms part of an extensive forest, including the two largest designated wilderness areas of the Catskill Park. The extensive forest, including the site and the adjacent wilderness areas are essential features of the Park and support wide-ranging, area-sensitive or forest interior species.
5.) A rare plant survey should have been conducted as part of the DEIS process in order to identify rare species in the Catskills in flowering and non-flowering form and sedges of statewide or regional significance.

6.) The site survey did not adequately evaluate the site for the presence of Wood and Spotted Turtles, species of special concern and Spring Salamander and Red Salamander which are both regionally rare but which may have been discovered with a thorough analysis.
7.) The streams on and adjacent to the site support trout Brook Trout and slimy sculpin which depend on cool flowing water with high dissolved oxygen content and good water quality. As indicated in the expert reports in the Petition for Party Status, the Belleayre Project will cause significant erosion on steep slopes and elsewhere on the site which will result in increased turbidity nutrient levels and temperature which would decrease the dissolved oxygen in the local streams. In addition, as indicated in reports provided by experts in the Petition for Party Status, pesticides and nutrients from operation of the golf courses will threaten the fish population of the local streams.

Conclusion
The DEIS fails to provide sufficient information to assess, or take a hard look at, whether the Belleayre Project will cause significant adverse impacts to the wildlife and wildlife habitat. Due to the significant alteration in the topography of the site and its associated dramatic deforestation, the Belleayre Project will result in significant loss of wildlife resources and habitat. The loss will not be limited to the Project site. Rather, the impacts will be felt on adjacent state lands including lands dedicated to natural resource preservation and wilderness experience. The DEIS fails to evaluate the wildlife resource and habitat impacts which will result from the Belleayre Project. As a result, the Commissioner cannot issue the findings required pursuant to 6 N.Y.C.R.R. ß 617.11 (d)(5). CPC requests that the issue of the Belleayre Project's adverse impacts on wildlife resources and habitat should be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
I. Forestry Impacts
CPC contends that the Belleayre Project raises substantive and significant issues for adjudication since the DEIS failed to adequately address the significant adverse impacts on the extensive forestlands of which the site forms one component. On either side of the Big Indian site are extensive tracts of wilderness areas of the New York State Forest Preserve. Yet, the DEIS does not account for private forest fragmentation which will result from development of the site including habitat and biological impacts. In addition, notwithstanding that private forest land continues to be lost at an alarming rate in the Catskill region, the DEIS does not account for the cumulative loss of this significant resource.
The CPC will rely on the testimony of Dr. Myrna Hall and Ms. Mary L. Tyrrell to demonstrate that the DEIS fails to adequately address the loss and fragmentation of private forestland and the forest impacts which will result from the Belleayre Project. Dr. Hall's curriculum vitae is attached as Exhibit "CV-M" , Ms. Tyrrell's curriculum vitae is attached as Exhibit "CV-N " and their report is attached as Exhibit "O". Dr. Kiviat and will also testify concerning the impact of fragmented forest on the biodiversity of the region.
Dr. Myrna Hall and Dr. Kiviat will testify to the findings and conclusions in their reports including but not limited to the following:
1.) Private forest land, now estimated to account for 1.4 million acres of land within the study area defined as a portion of the New York City Catskill and Delaware Watersheds is disappearing at a rate of 16,187 acres per year for a total of 145,685 acres between 1992 and 2001. The rate is likely to proceed over the next decade which would result in the loss of another 162,000 acres of private forestland and a significantly fragmented forest resource. Fragmentation, parcelization and loss of private forest lands in the areas near the site will be accelerated with the construction and operation of the Belleayre Project.

2.) The largely forested Catskill/Delaware Watersheds are under tremendous pressure from development. Two prominent features of the Catskill region are the nearly 300,000 acres of public forest land and the 1,854 square miles of catchment known as the Catskill/Delaware watersheds. Forest fragmentation and parcelization will degrade the biodiversity of this important area of second growth forest and will diminish the biodiversity of the regional forest. The Belleayre Project will result in the loss of intact forestlands which now extend on either side of the Big Indian parcel. This loss will result in an increased edge effect, with the associated introduction of weeds, nuisance species, loss of breeding habitat and the loss of woodland bird species.
3.) Given the extensive tract of forest land on the site and adjacent thereto, it is reasonable, and consistent with the known literature concerning forestlands of this expanse and type, that it supports wide-ranging, area sensitive and forest interior species such as black bear, fisher, bobcat, barred owl, diverse bird species and the timber rattlesnake. The DEIS fails to assess the impact that fragmenting the forest will have on these and other species.
4.) As indicated in section I of the Petition for Party Status, and in the correspondence from Audubon New York, the site will likely be included as part of the Catskill Important Bird Area as identified by scientists associated with Audubon New York. The Catskill Important Bird Area is one of the largest, most intact contiguous habitats for the assemblage of forest responsibility species in the Appalachian Mountains Bird Conservation Region of New York State. The massive proposed Belleayre Resort would cause fragmentation of this habitat and would destroy the functionality of a significant segment of this important Bird Conservation Region.
Conclusion
The DEIS fails to provide sufficient information to assess, or take a hard look at, the Belleayre Project's significant adverse impacts on the extensive forestlands of the region of which the site forms one component. Due to the dramatic deforestation of the site, the Belleayre Project will result in forest fragmentation and a significant loss of wildlife resources and habitat. The loss will not be limited to the Project site. Rather, the impacts will be felt on adjacent state lands including lands dedicated to natural resource preservation and wilderness experience. The DEIS fails to evaluate these wildlife resource and habitat impacts which will result from the Belleayre Project. As a result, the Commissioner cannot issue the findings required pursuant to 6 N.Y.C.R.R. ß 617.11 (d)(5). CPC requests that the issue of the Belleayre Project's adverse impacts on the forestlands should be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
J. Alternatives
CPC will present evidence that none of the alternatives considered by the applicant are discussed in a way that provides a meaningful basis to evaluate the environmental impacts of the proposed action, because of the utter lack of detail in the evaluation of alternatives considered, the absence of smaller scale alternatives, and critical deficiencies in the analysis of impacts for the applicant's preferred plan (Sections†3 and 4). According to 6†NYCRR ߆617.9(b)(5)(v): "The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed."
The DEIS falls far short of this standard, since the necessary detail either is absent or very limited, thereby utterly thwarting the requisite comparative assessment of alternatives. CPC will identify a number of substantive deficiencies in the DEIS's analysis of the impacts of the proposed action, particularly as this information relates to the comparative evaluation of alternatives. CPC will offer the testimony of John Ellsworth, Manager of Environmental Programs for Cashin Associates, P.C., and John Altschuler, Hamilton, Rabinovitz and Altschuler, whose curriculum vitae are attached as Exhibit "CV-O" and Exhibit "CV-P" respectively. Mr. Ellsworth and Mr. Altschuler will testify to facts and conditions set forth in their reports attached as Exhibit "P" and "Q" , including:

1. The applicant's analysis and conclusions regarding a one golf course/one hotel option as required by the scoping document is flawed. The applicant's conclusion that a one golf course/one hotel option is not financially feasible is erroneous, and further ignores the natural resource benefits and other benefits of such an option.
2. The applicant has completely failed to analyze any other reasonable alternatives of smaller scale or magnitude. Among the alternative uses for the subject property that should be examined in the DEIS is a facility, scaled down significantly from the proposed plan, which focuses primarily on addressing the local shortfall of lodging identified in the DEIS. Such an alternative could be designed to provide a range of lodging options, similar to the proposed project, and also could include suitable amenities (e.g., one or more restaurants, lodging-related shops and recreational facilities, to name a few). It would be appropriate for this alternative to include a number of variants, which examine a range of options for lodging facilities and amenities.
3) The analysis of reasonable alternatives must be evaluated as a means to eliminate, avoid or mitigate the significant adverse impacts which will result from the proposed Belleayre Project. In light of the significant adverse environmental impacts associated with development on the east side of Belleayre Mountain, a western alternative must be evaluated.
According to the Applicant's consultant (HVS), while the calculated expected return for Scenario 1 (development of the entire program on east and west parcels) was the highest at 14.7% and Scenario 5 (development of only the Wildacres golf club and resort) produced an expected IRR of 10.7%, both are marginal returns. The consultant's report further stated that Scenario 1 would require the stronger yields associated with the detached lodging units to counterbalance the risk of investment in the hotel and country club components. Given the applicant's stated strong expected returns produced by the detached lodging unit component, it is reasonable to expect that a program that includes the development of Wildacres in its entirety, including the detached lodging units could produce an acceptable risk-adjusted return, and is worth careful consideration.
The two components of the Applicant's program involve two very different parcels of land, the development of which have varied implications for the environment. The western parcel is already partially developed with existing infrastructure and its runoff flows to the less-threatened Pepacton reservoir. The eastern parcel is undeveloped forestland and runoff from development there would flow to the more sensitive water body, Esopus Creek. Limiting the development to the western parcel would decrease infrastructure investment costs, risks, and the overall environmental impact. The following examples should be evaluated through SEQRA and adjudication of the alternatives.
The Wildacres Alternative - Development of only the western parcel of the site, comprised of the ëWildacres' component, with the detached units. The inclusion of the detached units in the analysis may counterbalance the risk associated with the hotel/spa and golf amenities. Under this alternative, the eastern portion of the property could be sold to New York City or State or fully protected as forest lands, with conservation easements.
The Reduced Scale Residential Alternative - An all-residential development of a reduced scale that capitalizes on the remaining land by selling either to a public entity or to individual owners or by setting it aside as a preserve as an amenity to the development. A residential community could be centered on a single golf club and the remaining portion of the site could be sold to a public entity that would create a nature preserve.
The Natural Amenity Alternative - A destination development focused on alternative outdoor activities or recreational attractions that take advantage of the natural amenity of the unique pristine wilderness of upstate New York. This alternative might include a hotel/spa resort that offers an equestrian center, mountain biking and hiking trails or yoga retreat, offering a combination of amenities that would contribute a higher profit margin than a golf course and result in less environmental impact than a golf course.
The Single Golf Course (on western parcel) Alternative - A mixed vacation and residential development. This alternative would capitalize on shared amenities such as a single golf course on the western parcel of the site, club and possibly a golf school, with a nature preserve, developed over possibly a smaller site assemblage.
4.) The applicant's analysis and conclusions regarding a "no-action" alternative are flawed because they assess only as-of-right development possibilities in absence of the proposed project. The "no-action" alternative is also inadequate because it speciously concludes that the proposed project will provide conservation benefits beyond maintaining the status quo. The absence of analysis on a no-build alternative is further evidence that the full range of reasonable alternatives has not been addressed.
Conclusion
The DEIS fails to provide sufficient information to assess, or take a hard look at a full the range of reasonable alternatives. In addition, as a result of the cumulative impacts associated with the proposed expansion of the Belleayre Ski Center, a reduced scale alternative must be evaluated in a manner which allows a comparison of environmental impacts and mitigation measures. Due to the lack of reasonable alternative analysis, DEC will not be able to make the requisite findings under SEQRA that the selected alternative minimizes or avoids adverse environmental impacts to the maximum extent practicable. The inadequate alternatives section does not provide the Commissioner with an adequate legal or technical record on which to predicate findings pursuant to 6 N.Y.C.R.R. ß 617.11(d) (5). Consequently, the Belleayre Project's permit applications must be denied. CPC requests that the issue of the Belleayre Project's alternatives be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
K. Cumulative Impacts
The CPC will present evidence that the DEIS does not address the cumulative impacts which will result from construction and operation of the proposed Belleayre Project and the proposed expansion of the Belleayre Mountain Ski Center. Although the Belleayre Project is wed to the proposed expansion of the Belleayre Mountain Ski Center, the DEIS fails to acknowledge the synergistic and cumulative impacts which will occur. The two projects will result in cumulative impacts on the availability and adequacy of potable water supplies, surface water flow and aquatic habitat, traffic, use of Forest Preserve lands, and secondary growth. A discussion of these cumulative impacts by CPC's experts is set forth in this and the other sections of the Petition for Party Status
According to the DEIS, the most recent version of the Ski Center's unit management plan calls for increasing snowmaking capacity, adding parking spaces, expanding the lodge, and constructing new ski trails. See DEIS at 1-7. These ambitious improvements are aimed at substantially increasing annual skier visits to the Ski Center. Annual visits at the Ski Center between 1998 and 2002 ranged from 75,000 to 142,000 visits; according to the DEIS with future plans calling for an increase in the usage to 225,000 skier visits. See HVS Economic Evaluation at 2-5. A higher goal of 250,000 annual skier visits has been attributed to Ski Center Superintendent Tony Lanza in the local media. See Jay Braman Jr., "Belleayre seeks trails into Pine Hill Community," Catskill Mountain News, Mar. 5, 2003. According to the DEIS, "The Belleayre Resort at Catskill Park will bring to fruition the creation of a four season world-class Resort associated with the Belleayre Mountain Ski Center as contemplated in State and regional planning studies prepared over the last 40 years. The project is designed to complement both the active and passive recreational opportunities provided by the Belleayre Mountain Ski Center surrounding New York State Forest Preserve lands." DEIS page ii.
Moreover, the planned improvements are cited as a factor critical to the success of the Project. The HVS Economic Evaluation states:
An important consideration here is the potential for future improvements to the [Belleayre Mountain] Ski Center. In order for the Ski Center to truly function on the level of the proposed Resort (and not, in fact, detract from the Resort's market orientation), a major redevelopment of the lodges and other supporting facilities should be completed. Although the facility is currently state-owned, the current management team appears to be aware that a major upgrade will be necessary for the Ski Center to function in this regard. See DEIS at 1-5 to 1-7.
Although future improvements at the Ski Center are cited in the DEIS as support for the Project's "purpose, need and benefits," the DEIS makes no effort to otherwise identify and assess how the simultaneous development of the Project and expansion of the Ski Center will cumulatively impact the environment. Pursuant to SEQRA regulation, an EIS is required to assess significant cumulative impacts. 6 N.Y.C.R.R. 617.9(b)(5)(iii)(a). "Cumulative impacts" are defined as "impacts on the environment that result from the incremental or increased impact of an action(s) when the impacts of that action are added to other past, present and reasonably foreseeable future actions."
The failure of the DEIS to incorporate an assessment of the expansion planned for the Ski Center is confounding, given that the Ski Center is State-owned and operated by the DEC. The DEC is itself responsible for the planned upgrade, which is not speculative but certain. The DEC's Ski Center expansion plans, which call for "ambitious expansion of the size of the facility," have existed as at least a "rough draft" since at least May 2002. See Jay Braman Jr., "Belleayre Planning Underway," Catskill Mountain News, May 22, 2002 (attributing information to Ski Center Superintendent Tony Lanza.
On information and belief, DEC has, in its possession, a draft unit management plan ("UMP") for the Belleayre Mountain Ski Center expansion. The Director of the Ski Center, Mr. Tony Lanza, has on numerous occasions lead discussions on the nature of the proposed expansion as reported in several newspaper articles which are attached as Exhibit "R". As early as March 2003, Mr. Lanza stated that the draft UMP would be released for public comment in short order. In fact, these expansion plans were discussed at a public meeting at the Ski Center in March of last year. On March 28, 2004, a Freedom of Information Law request was submitted to DEC for the draft UMP which considers the proposed Belleayre Ski Center expansion. DEC has not yet made this record available. DEC, as lead agency for the Belleayre Project, must require consideration of the cumulative impacts of these two projects.
The proposed expansion is consistent with, and goes beyond, the 1998 final UMP for the Ski Center which lists 24 management objectives for modernization and expansion. In 1998, the UMP indicated that the skier carrying capacity increased to 4,500 skiers daily. Currently, according to Mr. Lanza, "We at (sic) 6,000 per day and we are planning for 7,000 to 9,000 per day. That would mean over 250,000 skier visits per year with an estimated secondary economic impact on the surrounding communities of $88 million." The 1998 UMP lists the 24 management objectives including: replacing lift # 8, increasing snowmaking; expanding Overlook Lodge; adding several new ski trails; and, adding a reception lodge and tubing park.
As guardian of the Forest Preserve, DEC has a higher responsibility to ensure that the Ski Center expansion and its associated impacts are fully disclosed and considered in connection with the Belleayre Project. The Commissioner must be fully informed concerning the proposed expansion before any decision can be made on whether the SEQRA findings can be issued in accordance with 6 NYCRR ß 617.11.
The Traffic Impact Study noted, however, that traffic in the area varies significantly by season, time of day, and day of the week (Traffic Impact Study at 44; DEIS at xiv) and concluded that the greatest increases in traffic will occur during the morning and evening hours of the peak ski season. SeeTraffic Impact Study at 3. To accommodate these increases, the consultants recommended numerous improvements and mitigation measures, including additional turn lanes at two intersections on NY Route 28 and a new traffic signal. See Traffic Impact Study at 44-45; DEIS at xiv-xv.
In its present form, the traffic study addresses the traffic generated by the Ski Center in only two respects. First, a weekend of record attendance at the Ski Center in year 2000 was used to develop the background traffic level during the peak seasons. See Traffic Impact Study at 3. Second, the study noted that annual traffic volumes on Route 28 have been increasing two percent annually; to account for "some additional growth that is expected at the Belleayre Ski Resort," the consultant used a three percent annual growth rate to project the background traffic volume for 2008, the year the proposed Project is expected to be fully open. With respect to this latter modeling assumption, the consultant noted that the extra one percent added to the annual growth rate in background traffic accounted for only "some" additional growth at the Ski Center. According to the consultant, "[a]ny specific developments proposed for the [Ski Center] would typically require the completion of a traffic impact analysis specific to the Project Ö the additional one percent added to the background growth rate is not meant to replace the SEQR requirements of an additional development."
As the traffic consultant itself acknowledged, to the extent that additional development is planned at the Ski Center, such development undermines the sufficiency of the DEIS' present projections and requires additional SEQRA analysis. As noted above, additional development is most certainly planned for the Ski Center, including increased snowmaking capacity, additional parking spaces, expansion of the lodge, and construction of new ski trails. According to the DEIS, the aim of these improvements is to attract 200,000 to 225,000 skier visits annually. Because annual skier visits between 1998 and 2002 ranged from 75,000 to 142,000 visits, and year 2000 data was used to develop peak traffic estimates, (Traffic Impact Study at 4) the reported development plans of the Ski Center represent a substantial increase in visits and related traffic that have not been accounted for in the DEIS' impact analysis. The DEIS is thus incomplete until appropriate cumulative impact analysis is completed. Such analysis must account for the traffic increases associated with the expansion of the Belleayre Mountain Ski Center, as well as any other environmental impacts expected to result from the development and increased attendance.
L Community Character
The CPC will present evidence that the DEIS does not address the adverse impacts to community character which will result from construction and operation of the proposed Belleayre Project. The DEIS omits consideration that the Project will result in any community character impacts by narrowly defining the concept. However, SEQRA defines the term "environment" broadly to include, "the physical conditions which will be affected by a proposed action, including Ö existing patterns of population concentration, distribution, or growth, and existing community or character." ECL ß 8-0105(6). Accordingly, "the impact that a Project may have on population patterns or existing community character Ö is a relevant concern in an environmental analysis." Staff and Workers Ass'n v. City of New York, 68 N.Y.2d 359, 366 (1986).
The DEIS concludes that, with respect to the existing use of the Project site and the land use and community character of adjacent land, no mitigation measures are required because no adverse or significant impacts have been identified. See DEIS at 3-135, 3-140. The DEIS' conclusion that there will be no impact upon community character is based upon its assertions that: (1) "the Resort will be fairly self-contained [and thus] there will not be an affect on community character;" and (2) the Project will merely "re-introduce resort development uses into an area that historically supported such development locally and on a large scale."
CPC will present evidence that DEIS treatment of community character is critically flawed. Mr. Peter Swift will testify concerning smart growth and the Belleayre Project's impacts on policies designed to achieve sustainable development. Mr. Swift's curriculum vitae is attached as Exhibit "Q ". Mr. Peter Smith and Ms. Mary Kopaski will testify in accordance with their report (which is attached hereto as Exhibit "A"), including but not limited to the following:
1.) One of the most important characteristics of the Catskills is its vast amount of open space. Approximately 500 acres of forested, open space will be directly altered if the Belleayre Project is approved. The Catskill Mountains have been recognized as a significant natural resource in New York State. The Catskill Forest Preserve Public Access Plan recognizes that the Catskill Forest Preserve is an invaluable asset to the quality of life and economic vitality of the Catskill region and management of the Preserve is imperative.
The open space impacts that have not been evaluated in the DEIS would include:
Source of topsoil has not been identified which will impact the loss of agricultural land;
Cumulative impacts and secondary growth impacts from construction of the Belleayre Project and the expansion of the Belleayre Ski Center;
The potential over use of the Forest Preserve lands, trails and resources;
Loss of the wilderness and forest character of the area;
Land use changes from forested land to more intensive development that will result in more impervious materials and a loss of the open space on the mountain top;
Potential loss of an additional 1,387 acres with no guarantees from the applicant on specific ways the remainder of the property is to be protected;
Impact on Route 28 as a scenic drive ñ and potentially as a State designated Scenic byway;
The scale and design of the hotels is out of context with the immediate area and the evolution and development of the Catskills.
2.) The DEIS inaccurately portrays the benefits and impacts of the Belleayre Project on community character. For example, the economic impacts of the proposed project will have a significant adverse impact on the existing community character as they will impact the number and type of jobs available, future surrounding land uses and the need for additional housing. These economic impacts are improperly assessed in the DEIS including:
The source of topsoil has not been identified and the impacts of loss of agricultural land;
Land use changes from forested land to more intensive development;
Problematical methodologies used in the economic analysis of the DEIS (boundaries, assessment of economic benefits, use of "average household income");
The use of all of New York State (including the New York City Metropolitan Area) rather than eliminating this area that skews the economic analysis;
Characterization of the local economy and labor force is inaccurate and the area is, in fact, a growing and vibrant portion of the State;
Overstatement of the number of quality or living wage jobs and potential salary impacts that the proposed project will have on the region;
Overstatement of existing unemployment rates and the need for this project as a "catalyst" for new development;
Understatement of average household incomes to make the area appear to be in a depressed state when, in fact, the area has experienced economic improvement over the past ten years and especially since 9/11;
Lack of Per Capita Income analysis to illustrate the economic condition of the region when compared to the rest of the State;
No recognition of the changing tourism industry and, in particular, the local movement away from large scale, all inclusive resorts to niche market providers;
The potential impacts on hamlets by creating one "large-scale" development that would be allegedly self-contained and compete "head-on" with existing businesses;
Secondary growth impacts (second/vacation homes, new housing construction, impacts on Route 28, economic impacts on the hamlets, cumulative impacts with the expansion of Belleayre Ski Center and overall fiscal impacts) are not considered.
3.) Community character impacts of the proposed Belleayre Project are tied to the probable population growth that can be expected from the project, yet this population growth is ignored in the DEIS. This population growth will impact community character of the region and, in particular, the Towns of Shandaken and Middletown
The community, neighborhood and social impacts that have not been evaluated in the DEIS include:
Increased truck traffic and traffic generated by the project;
Increased cost for road maintenance (Route 28) because of increased truck use in hauling fill, construction materials, landscape materials and the other traffic generated by the project;
Inclusion of "gated communities" to create exclusive enclaves in an area historically known as open and inclusive;
No consideration given for population growth and the need for additional housing for lower paid employees;
Meeting the broad definition of "in harmony" from either zoning code as the standard for special use permit requirement;
The community vision as outlined in the community survey and workshops;
Population growth potentials are not considered and are likely to have impacts on schools, fire, police and other services.
The cultural and historical impacts which will result from the Belleayre Project have not been adequately identified or evaluated by the DEIS. The area of the Catskills which will be impacted by this Project has a long and rich cultural history. Often referred to as "America's First Wilderness" because scholars trace the beginnings of conservation to this area, the region has long be renowned as a vacation and recreation area for recreational pursuits directly related to the beauty and aesthetics of the area. ( HYPERLINK "http://www.catskillcenter.org/region.html" http://www.catskillcenter.org/region.html ). Ironically, because of the sheer size of the Belleayre Project and the highly water intensive nature of its recreational use, i.e. golfing, this project will undermine the very natural and cultural attributes that have made this area unique resource that it is today.
In celebration of the one hundredth anniversary of the Catskill Park, Christopher Olney of the Catskill Park Centennial Committee made the following observation regarding the Park:
The Park's great value, appeal and uniqueness lies in this mix of public and private land across the landscape, manifesting itself as untouched wilderness areas and public recreation facilities intermingled with working farms and forests, scattered residences, and small-town communities. This mix forms both a diversity of land cover types across the region, benefiting many types of wildlife, and a diversity of scenery and beauty in the region, benefit residents and visitors alike.
Indeed, the beauty of the Catskills lies not only in the pristine spruce-fir summits, rugged road outcrops, vast forest tracts, hidden lakes, boulder studded trout streams, and graceful waterfalls, but also in the open hay meadows and dairy pastures, magnificent reservoirs, secluded homes in quiet hollows, undulating railroads, old barns and stone walls alluding to our agrarian past, and bustling, colorful main streets. All these things together and in close proximity to each other give the Catskill region its charm and identity. The Catskill Park is certainly a grand experiment in how human communities can coexist with wilderness; geographically intermingled and historically entwined. The Catskill Park Centennial Celebrating 100 years in 2004, Christopher Olney.
This area truly represents a unique intermingling of land uses. The Catskill Park is truly one of the Nation's unique "parks" because it encompasses both public and private lands, unlike most other public parks. According to Alf Evers, renowned Catskill historian, with the creation of the Catskill Park, "the word ëpark' took on an extended meaning to the people of the regionÖthe new kind of parkÖwas owned by the people and might be used by them except in ways that might damage the conservation goals of the park." (www.catskillpark100.org/history/cp.htm). Indeed, of the Catskill Park's 705,500 acre area, approximately 41 percent of the Park's land area is public and 59 percent is private. Id.
Contrary to the DEIS, the Belleayre Project does not represent a continuation of the area's resort history and culture. Rather, this proposal will overwhelm and destroy the diverse and intermingled land uses that currently characterize the area.
CPC will present evidence that DEIS' treatment of cultural resources is critically flawed.†† Mr. Peter Smith and Ms. Mary Kopaski will testify in accordance with their report, that among other issues, "The scale and design of the hotels is out of context with the immediate area and the evolution and development of the Catskills".
Furthermore, the DEIS fails to adequately consider impacts to historic resources despite the fact that the following sites listed on the National Register of Historic Places are located within the affected project area: the Zen Mountain Monastery (Camp Wapanachki), Old St. Rt. 28 at junction with Miller Road, Temper, New York; District School No. 14, Academy Street, South of junction with Birch Creek Road, Pine Hill, New York; Elm Street Stone Arch Bridge, Elm Street, over Alton Creek, Pine Hill, New YorkÖ..
Conclusion
The DEIS fails to provide sufficient information to assess, or take a hard look at the significant adverse impacts to community character. Due to the lack of consideration of community character and neighborhood impacts, the Commissioner will not be able to make the requisite findings under SEQRA that the selected alternative minimizes or avoids adverse environmental impacts to the maximum extent practicable. The inadequate community character evaluation does not provide the Commissioner with an adequate legal or technical record on which to predicate findings pursuant to 6 N.Y.C.R.R. ß 617.11(d) (5). Consequently, the Belleayre Project's permit applications must be denied. CPC requests that the issue of the Belleayre Project's impacts on community character be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
M. Sediment and Erosion Control
The CPC contends that the failure of the DEIS and application to adequately address stormwater controls, erosion and sedimentation of the areas surface waters raises substantive and significant issues for adjudication. The DEIS fails to describe, anticipate, and mitigate the effects of large areas of land disturbance (up to 25 acres at a time) in connection with the particular soils and geology of the project sites.
The CPC will rely, in part, on the testimony of Mr. Paul Rubin, Principal hydrogeologist with HydroQuest, a hydrological consulting firm based in Stone Ridge, New York. Mr. Rubin's resume is attached to this Petition. Steven R. Garabed, a senior engineer from Carpenter Environmental Associates, Inc., whose curriculum vitae is attached as Exhibit "CV-R", will testify that the Applicant has not provided sufficient information to justify a waiver of the 5-acre disturbance limit. The Carpenter Environmental Associates Report is attached hereto as Exhibit "S". CPC will also rely on the testimony of Dr. Paul S. Mankiewicz, Ph.D. whose curriculum vitae is attached as "CV ñU". Dr. Mankiewicz' report is attached hereto as Exhibit "V". Mr. Garabed. Dr. Mankiewicz and Mr. Rubin will testify to the following:
1.) As indicated, the applicant's phased construction plan proposes to disturb up to 25 acres of soil at one time during Phase I and up to 16.4 acres during Phase II. Disturbances of this magnitude would likely cause severe water quality impacts and are not in compliance with permit limits. The New York State General Permit for Stormwater Discharges Associated with Industrial Activities from Construction Activities, Permit No. GP-02-01, limits areas of unprotected, exposed soil to no more than 5 acres at any given time without prior written approval from DEC. Limiting the phasing of construction activities to disturb less than 5 acres or less at a time reduces sediment loadings to wetlands and watercourses; however, exposure of 16-25 acres of bare soil on a mountainside will compromise the effective management of stormwater runoff and may result in catastrophic sediment loading of receiving waters during rain events. The sensitivity of the site including the nature of the soils on the site, the steep slopes and its location amidst important trout streams and the Catskill/Delaware watershed justify a condition that not more than one acre be disturbed at any one time.
2.) According to EPA, sediment from one acre of a construction site can be equivalent to 1000-2000 times the sediment loading from one forested acre. In addition, clay particles often remain suspended for 6-9 months and even longer which could allow these particles to enter the New York City water supply distribution system. Elevated turbidity and suspended sediment present public health concerns for unfiltered water supplies. This will also be of concern due to the discharge to the Esopus Creek which is an impaired water body listed on the New York State list pursuant to section 303 (d) of the Clean Water Act. The DEIS fails to provide the public and interested parties with the level of information required for review under SEQRA.
3.) The DEIS does not consider and evaluate the impacts of the region's lacustrine clay (lake clay) deposits. In the vicinity of the project area there are two distinct clay-rich glacial units that may readily be entrained into turbulent stream flow and into runoff over exposed sediments which will occur during project construction. Lacustrine clays are concentrated in the valley bottoms of relict glacial lakes such as Shandaken and Peekamoose, and clay-rich sediments pose the greatest water quality threat in the Esopus Creek basin. The DEIS does not give adequate attention to the nature and specific hydrogeology of these clay deposits, resulting in underestimates of sediment increases following storm and other high water events. The DEIS fails to incorporate inadequate mitigation for this significant impact.
4.) The Applicant has stated that the CP series of plans exemplify the level of planning and phasing that will be completed for all phases of the project. However, the CP series of plans do not possess sufficient detail to warrant granting of a waiver. For example, CP-15 contains a table that lists the various erosion control technologies, which can be used at the site based on the slope of the specific area requiring mitigation. Based on this plan twenty different technologies could be used in an area with slopes greater than 100%.
5.) The Applicant does not show which technology has been selected for use. Prior to starting work in an area, the Applicant, the DEC and the public must know exactly what erosion controls will be used. Without knowing which technology is being used, it is impossible to assess the potential environmental impacts of the waiver.
6.) The Applicant should be required to show exactly how erosion and sediment control would be addressed in an area. The Applicant is requesting that NYSDEC waive its disturbance requirement, but the Applicant has not properly demonstrated that proper erosion and sediment controls will be used to protect these large areas of soil disturbance. Without specific erosion control plans and details the Applicant's waiver request should be denied.
Conclusion
The DEIS fails to provide sufficient information to assess, or take a hard look at, whether the Belleayre Project will cause significant adverse impacts to the sediment and surrounding water bodies that will be affected by erosion off the site. The DEIS did not take a hard look at the adverse impacts and does not provide the Commissioner with an adequate legal or technical record on which to predicate findings pursuant to 6 N.Y.C.R.R.ß 617.11(d) (5). Consequently, the Belleayre Project's permit applications must be denied. CPC requests that the issue of the Belleayre Project's adverse impacts on sediment and erosion control be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
N. Stormwater Management Plan
The CPC will present evidence that the DEIS and the applications do not contain sufficient information to analyze stormwater impacts from the proposed Belleayre Project. CPC will demonstrate that the use of the WinSLAMM model to characterize pre-development conditions related to stormwater runoff at the project site was improper and that operation of the effectiveness of the stormwater management infrastructure will not achieve the results predicted by the applicant.
The CPC will also demonstrate that the neither the DEIS nor the applications and supporting documentation show whether the project will meet the Total Maximum Daily Load (TMDL) for phosphorous.
CPC will rely on Steven R. Garabed, a senior engineer for Carpenter Environmental Associates, whose curriculum vitae is attached as Exhibit "R" and Professor Robert Pitt, Ph.D., M.S.C.E. whose curriculum vitae is attached as Exhibit "CV-S" Mr. Garabed's report is attached as Exhibit "S". Professor Pitt's report is attached as Exhibit "T".

Professor Pitt will testify that the WinSLAMM model employed erroneous assumptions as inputs into the model; that the model was not properly calibrated and the data was not properly verified. Without use of the appropriate local calibration and verification data, errors in pollutant discharge estimates cannot accurately be made. In support of CPC's position, Professor Pitt will testify that:
1.) The WinSLAMM model should not have been used to predict pre-development conditions relating to stormwater runoff. The model was developed to predict stormwater runoff from post-development conditions.
2.) Neither the DEIS nor the supporting documents describe the data and assumptions used as input to the model. Good modeling practices were not employed by the applicant; therefore, the model cannot be relied on to predict the Belleayre Project's impacts.
3.) Due to their poor design, the stormwater detention ponds will not achieve the volume of stormwater reduction or pollutant mitigation claimed by the applicant.
4.) The DEIS did not accurately predict the pollution loading from snowmelt. Studies have demonstrated that pollution loads from snowmelt can exceed pollution loads from mild weather storm events. Adequate mitigation, therefore, has not been included in the design of the stormwater detention ponds.
5.) The impacts from stormwater runoff on nearby trout and trout spawning streams have not been addressed.
Mr. Garabed will testify that the DEIS must reflect the phosphorus loading from the site using current data; discharge permits, and planned or completed projects, so that an accurate and up to date assessment of compliance with the TMDL can be completed. In support of CPC's position, Mr. Garabed will testify to the following:
1) The NYSDEC has developed a Total Maximum Daily Load (TMDL) for phosphorus within the Ashokan Watershed. According to Appendix 10 of the DEIS, there is flexibility in the loading assigned to non-point sources since as of 1996, the actual phosphorus loading from non-point sources was less than the allocated loading. Data from 1996 is not sufficient to make a determination as to whether there is available loading within the Ashokan Watershed today.
2) After over eight years, there has likely been additional development, which has increased the phosphorus loading within the watershed. The cumulative impact of all projects since 1996 and any proposed projects, which would be concurrent with the construction phase of the Belleayre project, must be considered in determining whether the TMDL will be complied with. For example, the NYSDEC recently released the Draft SPDES permit for the Shandaken Tunnel. This permit includes the Shandaken Tunnel as an additional point source within the watershed and allocates 10,457 kg/yr to the Shandaken Tunnel.

3) Since the discharge from the Tunnel was unaccounted for in the original TMDL allocations, the proposed allocation of 10,457 kg/yr exceeds the 8,026 kg/yr margin of flexibility for non-point sources, meaning that no additional inputs of phosphorus would be allowable.
Conclusion
The DEIS fails to provide sufficient information to assess, or take a hard look at, whether the Belleayre Project will meet the TMDL for phosphorous in the stormwater management plan. The DEIS did not take a hard look at the adverse impacts and does not provide the Commissioner with an adequate legal or technical record on which to predicate findings pursuant to 6 N.Y.C.R.R.ß 617.11(d) (5). Consequently, the Belleayre Project's permit applications must be denied. CPC requests that the issue of the Belleayre Project's adverse impacts on phosphorous loading be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.

P. Stormwater Treatment ñ Chitosan Acetate
CPC will present evidence that the applicant proposes to treat captured stormwater in detention basins with an allegedly "environmentally-friendly" flocculent called chitosan acetate before pumping the treated stormwater into forested land. CPC will present expert testimony to show how there is conflicting information on the toxicity of this flocculent to rainbow trout. Since there is a genuine question as the toxicity of this flocculent, the Applicant must be required to evaluate the potential toxicity of Storm Klear under site specific conditions. Steven R. Garabed, senior engineer at Carpenter Environmental Associates, whose will testify that in his expert opinion:
1) The information found in Appendix 2 of the DEIS claims that Chitosan used at the proposed dose of 1 to 2 mg/l is not toxic to rainbow trout. In fact, toxicity to cultured rainbow trout was observed at concentrations as low as 0.075 mg/l after 24 hours of exposure.
2.) The applicant should evaluate the potential toxicity of this flocculent by completing bioassay testing on a stormwater sample collected from the first stormwater/sediment basin installed at the project site. Without such testing, the use of Storm Klear at the site may cause an adverse impact to the trout population of the receiving waters.
Conclusion
The DEIS fails to provide sufficient information to assess, or take a hard look at, whether the use of Chitosan for the Belleayre Project will be toxic to fish. The DEIS did not take a hard look at the adverse impacts and does not provide the Commissioner with an adequate legal or technical record on which to predicate findings pursuant to 6 N.Y.C.R.R.ß 617.11(d) (5). Consequently, the Belleayre Project's permit applications must be denied. CPC requests that the issue of the Belleayre Project's use of chitosan be adjudicated pursuant to 6 N.Y.C.R.R. ß 624.4.
Q. Mining Permit
Crossroads Ventures has not applied for a Mined Land Reclamation Permit. Pursuant to the New York State Mined Land Reclamation Law and its implementing regulations, a mining permit is required for the proposed Belleayre Project. See ECL ßß 23-2701 et seq. The Mined Land Reclamation Law requires that: "any person who mines or proposes to mine from each mine site more than one thousand [1,000] tons or seven hundred fifty [750] cubic yards, whichever is less, of minerals from the earth within twelve successive calendar months Ö shall not engage in such mining unless a permit for such mining operation has been obtained from the [DEC]." ECL ß 23-2711(); 6 NYCRR 421.1(a). The statute defines "mining" as "the extraction of overburden and minerals from the earth" and "mineral" means "any naturally formed Ö solid material located on or below the surface of the earth," including peat and topsoil. See ECL ß 23-2705(7), (8); 6 NYCRR 420.1(j), (k). Although the Mined Land Reclamation Law does not require a permit for the excavation, removal and disposition of minerals from construction Projects or excavations in aid of agricultural activities, this exception is "exclusive of the creation of water bodies." See ß 23-2705(8); 6 NYCRR 420.1(k).
According to the DEIS, development of the proposed Belleayre Resort will necessitate the cutting and filling of nearly 1 million cubic yards of soil and bedrock. See DEIS at 3-6. The mining activity for the Belleayre Project will necessitate the stripping of 6,800 cubic yards of soil and the blasting of 18,200 cubic yards of rock to create the Project's detention ponds for treated wastewater. See DEIS at 2-55. These plans, which involve the mining of 25,000 cubic yards of minerals (more than 30 times statutory threshold) within a 12-month period for the creation of a water body requires a mining permit.
Given the immense quantities of rock to be blasted and soil to be stripped, there may be additional mining activities planned for the Project that require mining permits. This failure to apply for the requisite permit and meet the requirements of the Mined Land Reclamation Act precludes any finding that the DEIS is complete. Significantly, all mining permit applicants must develop a land-use plan and furnish a financial surety. See 6 N.Y.C.R.R. ß ß 422.1, 423.1. A mined land use plan sets forth in detail the applicant's mining and reclamation methods; the financial surety, established as a condition precedent to the issuance of a permit, is conditioned upon conformance with the applicant's mined land-use plan. 6 N.Y.C.R.R. ß 422.1 and 423. The suretyówhich may be furnished in the form of a bond, irrevocable letter of credit, or certificate of depositóis intended to insure that a Project Sponsor does not begin extractive activities without the financial wherewithal to complete the appropriate reclamation. 6 N.Y.C.R.R. ß 423.1(c), (d).
Remarkably, despite this enormous amount of proposed blasting and earthmoving, the DEIS concedes that the financing is not yet in place for the Project's construction. The HVS Economic Evaluation notes, for instance, that the developer intends to affiliate both components of the proposed resortóeastern and westernówith nationally recognized hotel chains. However, brand affiliation (and the accompanying financing) has not yet been established for the Project. See DEIS at 1-2.
Project approval in the absence of a financial surety raises the possibility that construction of the Project might beginóentailing the blasting of bedrock and the stripping of soil on a scale never before seen in the regionówithout any guarantee that the Project will ever be finished. The present terms of the DEC's draft permits therefore leave open the possibility that substantial damage may be done to the mountain without any degree of accountability if the Project does not come to fruition. Accordingly, a mining permit and the attendant financial surety is an absolute must for this Project.
Conclusion
The application for permits to construct and operate the Belleayre Project must be denied due to the failure of the DEIS to include an evaluation of the