Town of Claverack v. DEC (sand, gravel and fractured shale on 17.3 acres)
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: Application by Claverack Development Group and William C. First to mine sand, gravel and fractured shale on 17.3 acres of a 121-acre site owned by Randall or Mickey Gregory in the Town of Claverack, Columbia County
DISPUTING AGENCIES: Town of Claverack Zoning Board of Appeals, and Region 4 Office, New York State Department of Environmental Conservation (DEC)
This decision to designate the Region 4 Office of DEC as lead agency for the conduct of the environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR 617. This decision is based on my findings, as discussed below, that the impacts are primarily regional and statewide in nature, and on DEC's broad jurisdiction under the Mined Land Reclamation Law (MLRL) to regulate all aspects of mining and reclamation.
The proposed project is the application of Claverack Development Group to operate a sand, gravel and fractured shale mine on a 17.3-acre portion of a 121-acre parcel between Routes 9H and 66 in the Town of Claverack in Columbia County.
The Region 4 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to 6 NYCRR Parts 420-425 and Article 23 of the ECL. The Town of Claverack Zoning Board of Appeals has asserted jurisdiction to issue or deny a use variance because mining is not a permitted use in this area, which is zoned Highway Commercial (HC).
In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 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 potential impact(s) of the proposed action; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
In consideration of the first criterion, the potential environmental impacts identified for this proposed mining operation involve archaeological resources, traffic, water resources, agricultural resources, dust, noise, and visual resources. I find that these potential impacts are mainly regional/statewide in nature for the following reasons.
First, the proposed mine is located in a potentially significant site for archaeological resources. DEC indicated that the site of the proposed mine is within an area of sensitivity as identified on the New York State Office of Parks, Recreation and Historic Preservation (OPRHP) archaeological inventory map. The State Historic Preservation Act has recognized archaeological resources to be of statewide concern. Information regarding the presence or absence of archaeological artifacts on the site would be determined in a subsequent cultural resources survey conducted in consultation with OPRHP.
Second, traffic is an area of concern. Trucks will be entering and leaving on an adjoining state highway (NYS Route 9H). The applicant's mining plan indicates that an existing town road provides alternative access to NYS Route 66 but will not be used for haulage. Potential impacts to the state highway system would be of regional/statewide significance. A local agency's jurisdiction is limited to local roads.
Third, with respect to water resources, Mud Creek flows within 500 feet of the proposed mine. The applicant's Mined Land Reclamation permit application indicates that the segment closest to the proposed mine is a protected trout stream, Class. "C (T)". This potential regional impact to the stream favors DEC as lead agency.
Finally, the proposed mine site is located within Columbia County Agricultural District #3 as noted in the applicant's Mined Land Reclamation permit application. Potential activity or development in an agricultural district is an issue that has historically been considered to be of regional concern in the resolution of lead agency disputes.
Local concerns identified by DEC and the Town are dust, noise impacts to residents of the adjoining trailer park, and visual/aesthetic impacts.
The next criterion, the breadth of jurisdiction, favors DEC. The applicant must obtain a use variance from the Town of Claverack Zoning Board of Appeals. Under the MLRL, the Town's jurisdiction or ability to condition the mining activity on the site is limited to recommendations regarding:
- routing of mineral transport vehicles on town roads;
- setbacks for property boundaries and public thoroughfares and rights-of-way;
- man-made or natural barriers, designed to restrict access as needed and in regard to type, length, height and location;
- dust control;
- hours of operation;
- whether mining is prohibited at the site; and
- enforcement of reclamation requirements contained in the MLRL permit issued by the Department.
DEC Region 4 must incorporate into its permit conditions those local recommendations that are found to be reasonable or provide a written explanation to the local government if any or part of the recommendations are not incorporated.
The regional/statewide nature of the impacts from this project, when combined with the breadth of DEC's jurisdiction to regulate mining, have been important considerations for resolving other lead agency disputes in the past on mines of this size.
However, DEC has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. In resolving other lead agency disputes for mining projects, it has been recognized that the MLRL supersedes all other state and local laws related to the regulation of mining.
The third criterion focuses on which agency has the greatest capability for providing the most thorough environmental assessment. Both agencies either possess the ability to conduct a thorough environmental assessment or could obtain such ability through use of consultants.
I conclude, based on the potential regional/statewide impacts, and DEC's broader jurisdiction under MLRL that the Region 4 Office of DEC should be lead agency for the SEQR review of the proposed Claverack Development Group none.
This decision in no way limits the jurisdiction of the Town of Claverack. The applicant must apply for and obtain the use variance prior to commencing the action. I encourage the Town of Claverack to identify all of its environmental concerns so that the Region 4 Office can consider them in its determination of significance. The Region 4 Office should work closely with the Town of Claverack during the environmental review process.
John P. Cahill, Commissioner
Dated: July 22, 1997
Albany, New York
Distribution of Copies:
- Town of Claverack Zoning Board of Appeals
Claverack Development Group
New York State Department of Environmental Conservation:
- John P. Cahill, Commissioner
Additional Copies - Involved/ Interested Agencies: