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Town of Kinderhook v. DEC

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: Braley Borrow Pit Sand and Gravel Mine Application; Town of Austerlitz, Applicant. Designation of lead agency for the review of a proposal to expand an existing sand and gravel mine in the Town of Kinderhook, Columbia County

INVOLVED AGENCIES:Town of Kinderhook
Region 4 Office, New York State Department of Environmental Conservation

This decision to designate the Region 4 Office of the Department of Environmental Conservation (DEC) 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 Region 4 Office of DEC has the broader governmental powers for investigating the potential regional impacts of the proposed action and has the greater ability to assess the impacts.

The proposed project is the application of the Town of Austerlitz for an 8.0-acre expansion to an existing permitted 3.75-acre sand and gravel mine on a 269.4-acre parcel of land in the Town of Kinderhook, Columbia County. The Region 4 Office of the DEC has jurisdiction to issue or deny a modification to this permit under the authority of the Mined Land Reclamation Law (MLRL) and the Town of Kinderhook Planning Board has jurisdiction to consider a special use permit. DEC was the lead agency for the review of the existing mine.

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.

In consideration of the first criterion, the Town states that the anticipated impacts which include those normally associated with the operation of a mine such as noise, visual, fugitive dust and traffic, are all local in nature. The Town and DEC Region 4 staff have both identified the potential for impact to the Kline Kill, a C(TS) stream, which is a protected water body. The DEC Region 4 staff have also identified a potential for impact to regulated Freshwater Wetland (K-131), the potential for impacts to archaeological resources, the location of the site in Columbia County Agricultural District #10, the presence on site of prime agricultural soils, and the potential for flooding of a portion of the site during periods of high water.

Impacts such as noise, visual, fugitive dust and traffic are confined to the Town of Kinderhook. However, there is a potential for impact to a regulated wetland and a protected water body, a potential for flooding, a potential for impact to historic/archaeological resources, and the presence of prime agricultural land in an agricultural district. These resources which are of regional concern tend to outweigh the identified local impacts.

The second criterion to consider is the breadth of jurisdiction. Both agencies possess the necessary jurisdiction to act as lead agency for the review. The jurisdiction of the Town lies in the issuance or denial of a special use permit under the Town's zoning ordinance. The DEC has exclusive authority under the MLRL to regulate all aspects relating to mining and reclamation. The potential regional impacts and the greater breadth of the Department's jurisdiction under the MLRL, when compared to the limited jurisdiction available to the Town, result in the selection of the DEC as the most appropriate lead agency.

The third criterion is which agency has the capability to complete the environmental review. I find that both agencies are capable of performing a thorough environmental review. However, I note that DEC was lead agency for the review of the initial mining permit application for this site. The DEC staff's familiarity with the site and the environmental concerns related to it will enhance review efforts.

I conclude, based on the facts presented, that the Region 4 Office of the Department of Environmental Conversation should be lead agency for review under SEQR for the proposed expansion of the Braley Borrow Pit sand and gravel mine because of the potential regional impacts, the greater breadth of its jurisdiction, and its background and experience as lead agency for the review of the initial application.

Although the MLRL gives DEC the exclusive authority to regulate the extraction of minerals from the site and subsequent reclamation, the DEC should work closely with the Town of Kinderhook to ensure the Town's concerns are addressed in the environmental review.

/s/
Langdon Marsh, Commissioner
Dated: November 22, 1994
Albany, New York

Distribution of Copies:

  • K. W. Stack, Supervisor, Town of Kinderhook
    J. Dyslin, Supervisor, Town of Austerlitz
    W. Better, Esq.
    J. Green, P. E.

New York State Department of Environmental Conservation:

  • Commissioner L. Marsh
    A. Adamczyk, Director, Region 4
    M. Gerstman
    K. Martens
    W. Clarke
    R. Guthrie
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