Town of Skaneateles 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: Application by D.E.M., L.L.C. to mine sand and gravel on 18.2 acres of a 74-acre site owned by Darryl and Agnes Meiers in the Town of Skaneateles in Onondaga County
DISPUTING AGENCIES: Town of Skaneateles Town Board (Town) and Region 7 Office of New York State Department of Environmental Conservation (DEC)
This decision to designate the Region 7 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 statewide and regional in nature and that DEC has a broader jurisdiction under the Mined Land Reclamation Law (MLRL) to regulate all aspects of mining and reclamation.
The proposed project is the application of D.E.M., L.L.C. to operate a sand and gravel mine on an 18.2 acre portion of a 74-acre parcel on Stump Road in the Town of Skaneateles in Onondaga County. The site is adjacent to a residential subdivision but in an area where mining has been permitted.
The Region 7 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 Skaneateles Town Board has jurisdiction to issue or deny a special use permit.
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 the impacts are of primarily local significance, all other considerations being equal, the local involved agency will be the 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.
DEC and the Town of Skaneateles identified the following potential environmental concerns regarding the proposed mine:
- • impacts to surface and ground water resources including the proximity of Mud Pond and two freshwater wetlands to the proposed mine;
- • location within an agricultural district and proximity to historic resources; and
- • dust, traffic, noise and visual/aesthetic impacts.
In consideration of the first criterion, I find that the potential impacts are statewide, regional and local but primarily statewide and regional in nature for the reasons discussed below.
The Town identified potential impact to historic resources which will require DEC to consult with the Office of Parks, Recreation and Historic Preservation (OPRHP) to determine whether the site is within an area of sensitivity as identified on their archaeological inventory map. The State Historic Preservation Act recognizes archaeological resources to be of statewide concern.
Both the Town and DEC identified potential regional impacts to surface water resources including nearby Mud Pond, a protected waterbody under ECL Article 15, Title 5, which is surrounded by Class II and Class III freshwater wetlands (SKA-2 and SKA-1) that are regulated under ECL Article 24. The Town is also concerned about potential impacts to groundwater. An additional regional concern identified by both the Town and DEC is the project's potential impact on agricultural resources due to its location within Onondaga County Agricultural District #9.
With respect to potential local impacts, the Town and DEC identified traffic on Town roads, dust and noise. The Town also identified potential visual/aesthetic impacts and has noted the mine's proximity to a residential subdivision (one house is located three hundred feet from the property boundary) and the proximity of a tree nursery and golf course.
Under the next criterion, the breadth of jurisdiction, DEC is favored as lead agency. The applicant must obtain a special use permit from the Town of Skaneateles Town Board. The MLRL preempts local regulation of mining and the Town's jurisdiction or ability to condition the activities 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 has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. The breadth of the DEC's jurisdiction under the MLRL is superior to the Town's special use permit. 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. DEC must incorporate into its permit conditions those recommendations by the Town that are found to be reasonable or must provide a written explanation to the local government if any or part of the recommendations are not incorporated.
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 consultants.
I conclude, based on the potential statewide and regional impacts, and DEC's broader jurisdiction under MLRL, that the Region 7 Office of DEC should be lead agency for the SEQR review of the proposed D.E.M., L.L.C. mine.
This decision in no way limits the jurisdiction of the Town of Skaneateles. The applicant must apply for and obtain the necessary Town approval prior to commencing the action. I encourage the Town of Skaneateles to continue to identify all of its environmental concerns so that the Region 7 Office can consider them in its determination of significance. The Region 7 Office should work closely with the Town of Skaneateles in the conduct of the environmental review process and address the Town's concerns.
John P. Cahill, Commissioner
Dated: Sept. 8, 1997
Albany, New York
Distribution of Copies:
- Town of Skaneateles Town Board
New York State Department of Environmental Conservation:
- John P. Cahill, Commissioner
Additional Copies - Involved/ Interested Agencies: