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Lead Agency Dispute: Long Island Power Authority (LIPA) v. the Board of Trustees of the Village of Greenport

New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency Under Article 8 of the Environmental Conservation Law

Project:

A proposal by the Long Island Power Authority (LIPA) to install a new 13 kv underground electrical feeder cable from the Town of Southold 8J substation to Shelter Island to provide the island with electricity to meet its reliability needs (the Project). The Project crosses several territorial areas within Suffolk County, New York, including the Town of Southold, the Village of Greenport, Shelter Island Sound and the Town of Shelter Island, Suffolk County, New York.

Disputing Agencies: Long Island Power Authority (LIPA) and the Board of Trustees of the Village of Greenport (Village Board).

I have been asked to designate a lead agency to conduct an environmental review of the Project under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State Environmental Conservation Law [ECL], with implementing regulations at Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 617]). This designation of LIPA to serve as lead agency is based on my finding that most potential impacts would be to areas outside of the territorial jurisdiction of the Village, and that LIPA, as a regional agency, has the broadest governmental powers for investigation of the impacts of the Project.

Action and Site

The Proposed Action is the installation of approximately 3.1 miles of new 13 kv feeder cable from the Town of Southold to Shelter Island. The electricity supply from the cable would replace the electricity generated from temporary diesel generators that were staged on Shelter Island during the summer load season for each of the past two years. Damage from Hurricane Sandy caused the then-existing feeder cable from the Town of Southold to Shelter Island to fail. The Project can be broken down into three geographic segments as follows:

Originating at LIPA's existing substation in the Town of Southold, the line will be installed in the Right of Way ("ROW") of NYS Route 25 from Southold to the terminus of 5th Street adjacent to the Shelter Island Sound (on the waterfront/beach area) in the Village. The total length of this segment is approximately 2 miles, of which approximately 0.69 miles is located within the Village of Greenport's territorial limits.

The next segment of the cable installation, approximately 0.62 miles, between the Village of Greenport's waterfront and Shelter Island, will be installed utilizing horizontal directional drilling (HDD) (a steerable, trenchless method of installing electrical cable) underneath the floor of Shelter Island Sound and to the Shelter Island North Ferry Parking Lot. Finally, installation of the cable underground for approximately 0.47 miles from the North Ferry Parking lot to Chase Avenue, all located within the Town of Shelter Island.

Regulatory Setting:

The Village Board's jurisdiction here is in its capacity as a landowner, i.e., LIPA must obtain an easement from the Village Board to install its electrical cable underground through portions of the Village. The Village's segment of the electrical cable is .69 miles in length out of a total distance of 3.1 miles.

LIPA as project sponsor is responsible for all components of the project, including its design, construction and oversight within and without the territorial limits of the Village. As indicated above, the Project also includes the 0.62 mile section of new electrical feeder cable that will run under Shelter Island Sound between the Village of Greenport and Shelter Island, which is under the State's ownership through the Office of General Services (OGS). See Town of Southold v Parks, 41 Misc. 456 (Sup Ct. 1903), affd, 97 AD 636 (2d Dept. 1904), affd, 183 NY 513 (1905).

Although other potentially involved agencies including OGS were identified by the parties, the Village Board and LIPA are the only agencies involved in this lead agency dispute.

Discussion

In resolving a lead agency dispute, under 6 NYCRR Part 617.6(b)(5)(v), I am guided by the three criteria listed in order of importance as follows:

  1. whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);
  2. which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
  3. which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

First Criterion

The first criterion favors LIPA. Potential impacts that may occur from the Project are both local and regional in nature. The proposed electrical cable will be constructed primarily within existing road rights-of-way and also require work adjacent to and underneath Shelter Island Sound using HDD. Potential impacts of regional significance include effects to Shelter Island Sound from the HDD installation of the electrical cable and to air quality as a result of continued use of the temporary diesel generators should the Project not occur. Landward, the types of potential impacts that can be expected to occur are construction related impacts such as stormwater runoff and noise, which are of local importance. The electrical feeder cable will only traverse Village territory for 25 percent of its length with the rest of cable in other jurisdictions. LIPA, as a regional agency and public authority, is in a better position to consider the impacts of the entire cable including, most importantly, potential impacts of regional importance.

Second Criterion

For similar reasons, the second criterion favors LIPA. LIPA is a regional agency and the Project spans three municipalities and underwater lands between the Village and Shelter Island. On the basis of geography alone, LIPA has the broadest governmental powers for investigation of the potential impacts of the Project. LIPA has the authority to investigate impacts of the Project throughout the 3.1 mile span of the feeder cable. Further, LIPA, as sponsor, designer, construction overseer and the agency funding the Project, possesses a much greater ability to add, modify or even eliminate project elements. This becomes especially important if design changes would be needed to avoid or minimize project impacts.

Third Criterion

In considering the third criterion, LIPA, as a regional authority, has a greater capacity to conduct an adequate and comprehensive environmental review of the Project. Since a designation of lead agency can be made without relying on this third criterion, I need not address it further.

Finding

Given the geographic span of the Project and LIPA's comparatively broader authority to investigate impacts along the entire length of the proposed feeder cable, I conclude that LIPA should serve as lead agency for the review of the Project.

In designating LIPA to serve as lead agency for this action, this decision in no way limits the jurisdiction or responsibilities of the other involved and interested agencies, and I encourage LIPA to seek and use the expertise of other involved or interested agencies in evaluating potential impacts of the Project.

Dated: November 10, 2016
/s/ Basil Seggos, Commissioner
Albany, New York

Distribution of Copies

Disputing Agencies/Applicant (mail and e-mail copy):
Sy Gruza, Senior Counsel Environmental, PSEG Long Island (LIPA)
Joseph Prokop, Esq., Greenport Village Attorney

Potential Interested Agencies/Parties (e-mail copy):
Ralph Hill, NYSOGS
Eugene Smith, NYSDOT
NYSDOS, Coastal Resources
Scott Russell, Supervisor, Town of Southold
James Dougherty, Supervisor, Town of Shelter Island
Sara Lansdale, Director of Planning, Suffolk County Division of Planning & Environment

New York State Department of Environmental Conservation (e-mail copy):
Lawrence H. Weintraub, Office of General Counsel, NYSDEC Central Office
Carrie Gallagher, Regional Director, NYSDEC Region 1
Roger Evans, Regional Permit Administrator, NYSDEC Region 1
John Wieland, Environmental Analyst, NYSDEC Region 1


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