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Town of Southampton v. DEC

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

PROJECT: Application by Ronald & Isobel Konecky to construct a shoreline stabilization structure, Town of Southampton, Suffolk County

DISPUTING AGENCIES: The Town of Southampton and the Region 1 Office of the New York State Department of Environmental Conservation (DEC- Region 1)

This decision to designate the Town of Southampton as lead agency for the conduct of the environmental review under the State Environmental Quality Review Act (SEQRA) is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 617. This decision is based on my findings that the impacts are primarily local in nature, though its implementation of the Coastal Erosion Hazard Areas Law has the broadest jurisdiction over the proposed activity.

The proposed project is the application by Ronald & Isobel Konecky to construct a shoreline stabilization structure to protect an existing single-family home and accessory structures located in the Town of Southampton, Suffolk County.

DEC-Region 1 has jurisdiction under ECL Article 25 and the Tidal Wetlands Land Use regulations, 6 NYCRR Part 661. The Town of Southampton has authority under Chapter 138 of the Southampton Town Code which implements the Coastal Erosion Hazard Areas Law, Article 34 of the ECL.

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

The first criterion relates to whether the anticipated impacts are primarily of statewide, regional or local significance. The proposed activity will take place entirely on the Konecky property which is located in the Town of Southampton. The potential impacts identified by both agencies include scour and erosion of the beach and dunes, reduction or loss of access to a public beach and aesthetics. These impacts are primarily local in nature and this criterion clearly favors the Town of Southampton as lead agency. DEC-Region 1 has also identified the potential for cumulative impacts that would extend beyond the jurisdiction of the Town of Southampton. DEC- Region 1 staff state that this proposal to protect coastal resources may set a precedent for other applicants on the entire south shore coastline of Long Island. This point is more appropriately addressed in the discussion of the next criterion.

The next criterion deals with the breadth of jurisdiction. Both DEC-Region 1 and the Town of Southampton have the necessary jurisdiction to examine and mitigate, if necessary, the anticipated impacts from the proposed action. However, with respect to the application which is the cause of this dispute, it is clear, as DEC-Region 1 noted, that the authority of the Town of Southampton's Coastal Erosion Hazard Area Law (Chapter 138 of the Southampton Code) is broader than that afforded DEC-Region 1 under the Tidal Wetlands Land Use regulations (6 NYCRR Part 661).

Regarding the potential for cumulative impact, DEC-Region 1 has identified activities that are being undertaken by other state and federal agencies that will potentially impact coastal resources. DEC-Region 1 further states that other private applicants may seek to construct similar projects. This argument is not persuasive. Although concern about the cumulative impact of shoreline stabilization structures is a very real and valid issue, the review of this particular application is not the place for that assessment. That analysis should be done prospectively as part of a resource-based assessment. It appears that the Town of Southampton is attempting such an assessment based on their August 6, 1998 solicitation for lead agency status for the preparation of the Atlantic Ocean Shoreline Beach and Coastline Management and Protection Plan. DEC as the prime resource agency must work with the Town to ensure that this plan is protective of coastal resources and consistent with the other activities being conducted on this shoreline.

In consideration of the last criterion, both agencies have the capability either on staff or through the use of consultants to conduct a thorough environmental assessment.

I conclude, based on the local nature of the impacts and the broad nature of its jurisdiction over the proposed activity, that the Town of Southampton is the most appropriate lead agency for the SEQR review for the proposed application by Ronald and Isobel Konecky to construct a shoreline stabilization structure in the Town of Southampton.

This decision in no way limits the jurisdiction or responsibility of the DEC-Region 1 office. The applicant must obtain the necessary DEC tidal wetland permit prior to commencing the action. I encourage the DEC-Region 1 staff and the Town of Southampton to work cooperatively to insure that decisions made with respect to the Konecky application are consistent with the approaches that are being taken to protect the coastal resources of the entire south shore coastline of Long Island.

/s/
John P. Cahill, Commissioner
Dated: 10/4/98
Albany, New York

Disputing Agencies/Applicant:

  • Ray Cowen, Regional Director, DEC Region 1
    John Pavacic, Regional Permit Administrator, DEC Region 1
    Robert Duffy, Town of Southampton
    Lisa Kombrink, Esq., Town of Southampton
    Eric Bregman, Esq., Special Counsel to the Town of Southampton
    Ronald & Isobel Konecky, Applicant
    William Esseks, Esq., Attorney for Applicant
    Aram Terchunian, First Coastal Corp

New York State Department of Environmental Conservation:

  • Victor Gallo
    Jack Nasca

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