Town of Wawayanda v. DEC (AAA Sod Farm)
Lead Agency Dispute
New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law
PROJECT: AAA Sod Farm: Designation of lead agency for the review of a proposed sand and gravel mine in the Town of Wawayanda in Orange County
DISPUTING AGENCIES: Town of Wawayanda
Region 3 Office, New York State Department of Environmental Conservation
This decision to designate the Department of Environmental Conservation (DEC) Region 3 office as lead agency for the conduct of an environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law and 6 NYCRR 617. I find that the Department of Environmental Conservation has the broadest governmental powers for the investigation of the impacts of the proposed action, as well as the greater expertise required for a thorough environmental review.
The proposed project is the application of AAA Sod Farm to mine sand and gravel from an approximately 42.5-acre parcel known as the AAA Sod Farm in the Town of Wawayanda, Orange County. The site was previously mined under permits from both the Town of Wawayanda and the Department of Environmental Conservation. These approvals expired more than five years ago. The applicant wishes to resume the mining operations.
The Town of Wawayanda asserts that a residential subdivision approval will be required at the end of the mining phase of proposal. This requirement is based on a statement in the Environmental Assessment Form (EAF) (Part 1, Section B, Item 3) which states that the site will be reclaimed for residential use. The applicant has since clarified its intention and has stated that it has no intention of pursuing a residential subdivision at this time. Further, the applicant states that its intention is to reclaim the property for use as part of the existing farm operations.
The DEC Region 3 office has jurisdiction to issue or deny a mining permit under the authority of the Mined Land Reclamation Law (MLRL). The Town of Wawayanda has a Zoning Law which, according to the Chairperson of the Wawayanda Planning Board, states that the applicant must obtain a special use permit to allow mining in an Agricultural Business Zoning District.
In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 617.6(e)(5). These are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest powers for investigation of potential impacts; and (3) which agency has the greatest ability to provide a thorough environmental assessment of the proposed action.
Examination of the first criterion shows that although the physical location of the impacts will be primarily local, some of the resources to be affected may have statewide or regional importance. Potential impacts of statewide significance include impacts to archaeological/historic resources (State Historic Preservation Act) and activities within an Agricultural District (certified pursuant to the State Agricultural and Markets Law). In a letter to the Town Planning Board dated April 1, 1993, the applicant indicated that they are performing an archaeological study of the site. Other anticipated effects such as traffic, dust, visual, noise and land use impacts to the Town of Wawayanda are local in scope.
Since the location of the impacts does not strongly favor either the local or state agency, and both agencies have the responsibility to ensure that any potential impacts on each of the resources are addressed in the review of the application, I must examine the remaining two criteria.
The next criterion to consider in this dispute is the breadth of jurisdiction. In order for the project to be operated as proposed, the applicant must obtain a special use permit from the Town of Wawayanda and a MLRL permit from DEC. Special use permits carry with them the resumption that the use is allowed in the applicable zone, so long as established conditions and/or standards are met.
This request for resolution of a lead agency dispute is not dissimilar to several others I have been called on to make relating to the MLRL (ECL Section 23-2701 et seq.). The MLRL supersedes all other state and local laws related to the regulation of mining, except for local land use or zoning ordinances. Recent MLRL legislation has provided specific guidance regarding local government involvement in the review of mining applications. Local governments can advise the DEC in, regard to: setbacks from property boundaries and public thoroughfares and right-of-way; man-made or natural barriers designed to restrict access if needed and, if affirmative, the type, length, height and location of barriers; dust control; staff have considerable experience in the review of mined land proposals and site reclamation. The level of expertise in reviewing mine land permit applications is readily available to DEC and would be difficult for any town to obtain, even through the use of consultants. As stated in its request for lead agency determination, the Town has been led to believe that the applicant intends to develop the site as a residential subdivision following the proposed mining operation. The weight of the Town's request for lead agency is based on this belief. However, as indicated earlier, the applicant has withdrawn this proposal stating, in writing, that this application is based on its intentions to return the land to farming operations upon completion of the mining plans..I conclude, based on the facts presented, that the Region 3 office of the Department of Environmental Conservation best serves the function of lead agency for conduct of the environmental review for the AAA Sod Farm mining application due to its broad jurisdiction under the MLRL and the expertise of staff in the review of mining and reclamation projects.
This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review the proposed action and to assist the DEC in completion of the environmental review process. The issues raised by the Town of Wawayanda must be considered by the DEC in making their determination of significance.
Thomas C. Jorling, Commissioner
Dated: July 12, 1993
Albany, New York
Distribution of Copies:
- AAA Sod Farm, Inc., Sand and Gravel, Applicant
Jeffrey Bridges, Supervisor, Town of Wawayanda
Jean-Ann McGrane, Director, Region 3 Office, NYSDEC
Ann Yates, Chairperson, Town of Wawayanda Planning Board
Margaret Duke, Environmental Analyst 3, NYSDEC
New York State Department of Environmental Conservation:
- Commissioner Jorling
Additional Copies - Involved/ Interested Agencies: