Hempstead Lake State Park: Public Comments and GOSR’s Responses

APRIL 2019 by Brien Weiner

The Governor’s Office of Storm Recovery (GOSR) released the public comments on the Hempstead Lake State Park (HLSP) Project Environmental Assessment (EA) on February 22, along with their responses. The comments were revealing; GOSR’s responses, however, were not. The U.S. Fish and Wildlife Service (USFWS), the Environmental Protection Agency (EPA), and the Army Corps of Engineers (ACOE) had many objections that were the same as those of SSAS and the Citizens Advisory Committee — objections that were similarly expressed and ignored in both 2017 and 2018. GOSR’s failure to respond to federal agencies drew a rebuke from the U.S. Department of Housing and Urban Development (HUD), which oversees the HLSP Project, as evident in a letter obtained through a Freedom of Information Act request.

GOSR, however, seems determined to push on. They are selective in choosing and interpreting comments for response. They do not acknowledge the many commenters who raised the same issues. And in many cases, they merely engage in circular reasoning and point to the EA as if its existence is its own justification.

All the agencies involved in revising the EA — HUD, EPA, USFWS, and ACOE — were concerned with the segmentation of the Living with the Bay Project, and assessing the HLSP Project as functionally independent from the other Mill River projects. If this is permissible because of variety and geographical separation, as GOSR states, then that is because LWTB has lost its vision of a blue-green corridor with room for the river and deteriorated into a hodgepodge of gray-infrastructure municipal wish list projects. The federal agencies all cited a lack of detail for cumulative impacts. GOSR blatantly justifies segmentation with time-line concerns, which is the same reason they refuse to complete a full Environmental Impact Statement. Putting our environment and communities at risk for the sake of spending money before a deadline may not only be more costly later, but also demonstrates GOSR’s incompetence and calls for a change of lead agency for environmental review.

All the federal agencies also found that GOSR was deficient in mitigating the loss of wetlands, as the New York Department of Environmental Conservation (DEC) found previously. First, the USFWS points out that GOSR’s wetlands calculations are incorrect. The ACOE states that impacts cannot be assessed and mitigated without a jurisdictional determination, which GOSR failed to obtain in its hurry to issue a Finding of No Significant Impact (FONSI). HUD states that contaminated sediments were identified in the ponds and that upland soils to be reused for wetlands creation were not tested; as long as testing was deferred, no determination regarding significant impact could be made. GOSR’s response is more than troubling: GOSR takes upland soil samples and averages the results with contaminated sediments to come up with values that meet DEC standards. Call it fuzzy math or cooking the books, it goes beyond incompetence to negligence.

Second, GOSR did not seriously consider alternatives, as required by federal wetlands laws. The EPA suggested that the EA evaluate reed beds for nutrient removal and bacteria level reduction, since they might be more effective and efficient than what was proposed. The EPA finds insufficient information for the grading plans, berms, sediment basins, shore-bank stabilization, etc., and concludes that the EA does not meet the requirements for a FONSI. GOSR claims new plantings in six discontinuous areas mitigate loss of wetlands, but birds and other wildlife need continuous habitat. As emphasized by the USFWS, the EA proposes impacts to open-water, scrub-shrub, emergent, and forested wetlands, resulting in a net loss of 1.72 acres of wetlands. Some mitigation is proposed in the form of emergent wetlands; however, no in-kind mitigation is proposed for other wetland types. According to the DEC’s Freshwater Wetlands Regulation Guidelines on Compensatory Mitigation, “It is very often necessary to replace more acreage than has been impacted to fully compensate for losses. Larger acreage may be needed as insurance against the uncertainties associated with trying to create a new wetland. Higher replacement ratios may also be needed to compensate for the long time it will take for a mitigation wetland to function at the same level and provide the benefits of the wetland being replaced.”

GOSR claims loss of habitat will be mitigated by improvement in water quality, but besides the false equivalency, that the water quality will be improved is questionable. GOSR’s own data shows a 90% pollutant reduction under current conditions. If it ain’t broke, don’t fix it.

Elsewhere GOSR either disregards hydraulics and hydrology data or asserts that it is unobtainable. They ignore the DEC standards for dam overtopping and the ACOE recommendation to leave trees on the Hempstead Lake dam to maintain integrity; GOSR may thereby negligently cause catastrophic flooding, and paradoxically defeat its own purpose. GOSR admits to having no data for Hempstead Lake, so they use inaccurate data from a downstream tributary; they claim they couldn’t obtain recent data because the weather was too dry — for a flooding project? Data should be collected during the storms that we do have even when the weather is relatively dry, but the past year has been wet. The funds for Hofstra’s Mill River program could have been used to involve students in collecting flow data.

Another sticking point for the federal agencies is the lack of a management plan. GOSR engages in magical thinking and states merely that the project would not have proceeded if State Parks did not have a maintenance plan, and that current maintenance operations would continue. They ignore the facts that HLSP has been chronically underfunded and understaffed, and the dams fell into disrepair and invasive plants spread under current operations. The federal agencies note that management plans need to be incorporated in the project and not deferred until completion.

Of course, one of the greatest transgressions of the HLSP EA is the destruction of trees and loss of habitat for birds, and on this SSAS is supported by the USFWS. Here are some of their findings:

“We recommend that the EA include information on wintering waterfowl and waterbird use of the individual ponds, and how the construction activities and final design and water-level management would impact the distribution and use of the ponds by these species.” GOSR ignores the significance of how rare freshwater mudflats are in Nassau County and that they are used by an abundance and variety of at-risk shorebirds, wading birds, and dabbling ducks.

“Please note that this time of year restriction (Nov. 1–Mar. 31) does not cover the time of the year that great homed owls or other raptors nest. We encourage consideration of measures to avoid destruction of active nests of these species during any tree removal or planting activities.” GOSR informed the CAC that they have permission to drop trees during summer, but they are evasive on this in their response to comments. (Editor’s interruption: February’s Skimmer mentions GOSR’s claim that they’re newly allowed to do tree removal after March 31 instead of having to wait until another November.)

“The EA also states that waterfowl and waterbird use of the NW and NE ponds may be impacted by increased human disturbance related to reduced buffer distances and increased human activity along trails.” GOSR is unclear on whether this will be mitigated by additional native plantings.

“Without additional maps or more detailed information regarding the location and distribution of tree removal, it is difficult to assess the habitat value of these trees or how removal may impact plant and wildlife species... In most cases, the EA indicates that mitigation for the loss of trees will be in the form of native flowering plants and shrubs. We recommend that the EA assess the relative value of existing and proposed mitigation habitat to wildlife to ensure that any potential losses are sufficiently offset.” According to GOSR’s general maps, the trees removed would include stands of valuable native oak and cherry.

The USFWS has more to say on monitoring and measures to protect the endangered northern long-eared bat, and the potentially listed little brown bat, tricolored bat, yellow-banded bumblebee, and monarch butterfly; on impacts, mitigation, and management for fish; and on the impacts of the education center, kayak launch, and impervious surfaces on habitat and wildlife.

Further, GOSR avoids discussion of alternatives such as repurposing an existing building instead of constructing a new multimillion dollar education center that destroys habitat; providing an emergency spillway to mitigate dam overtopping; and locating floatables collectors upstream to prevent floatables, microplastics, and toxins from entering the watershed at their source. Relocating the floatables collectors would also save valuable wetland habitat and provide learning opportunities for Hempstead High School students. GOSR cites bureaucracy as the reason, but bureaucracy should not trump ecology and the health of our environment and communities. Finally, GOSR states that Park Preserve status will not be considered for the North Ponds, with no explanation beyond that the designation is rarely used, a fact belied by the recent designation of part of the Jones Beach West End as a Park Preservation Area protected from future development. The future of the North Ponds will remain precarious under GOSR’s present plans.