Town of Wawayanda v. DEC (18 acre sand and gravel mine)
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 E. Elizabeth Garten to mine "run-of-bank" sand and gravel on 18 acres of a 91-acre site in the Town of Wawayanda, Orange County
DISPUTING AGENCIES: Town of Wawayanda
Region 3 Office, New York State Department of Environmental Conservation (DEC)
This decision to designate the Region 3 Office of the Department of Environmental Conservation 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 and 6 NYCRR 617. I find the potential impacts are regional/statewide in nature and have the potential to affect more than the immediate local environs. In addition, DEC's jurisdiction under Mined Land Reclamation Law (MLRL) is broader than that of the Town of Wawayanda. Finally, DEC has greater capability and expertise to conduct the environmental review for this project.
The proposed project is the application of E. Elizabeth Garten to mine "run-of-bank" sand and gravel from 18 acres of a 91-acre parcel on the east side of Golf Links Road in the Town of Wawayanda, Orange County. The Region 3 Office of the DEC has jurisdiction to issue or deny a mining permit under authority of the MLRL. The Town of Wawayanda has the following jurisdictions: the Planning Board will consider a special use permit and will make a decision on site plan approval for the project; if the applicant chooses to seek a zoning variance, the Zoning Board of Appeals will be asked to consider a zoning variance; if the applicant chooses to apply for a zone change, the Town Board will decide on whether to entertain a zone change.
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 typical impacts associated with a mining operation are traffic, noise, visual, fugitive dust and land use. Both the Town of Wawayanda and DEC have identified these issues as being local in nature. With respect to regional impacts, this particular action has the potential to impact one of three well fields supplying potable water to a majority of the residences in the adjoining Town of Wallkill. DEC is currently reviewing an application to permit a new well on the well field site closest to the proposed project, to further consolidate the water supply for the Town of Wallkill. There is also concern about potential impacts to the abutting Wallkill River which is classified Class B and considered locally to be a fair to good warm water fishery.
Of statewide concern is the designation of the area as archaeologically "sensitive" requiring consultation with the NYS Office of Parks, Recreation & Historic Preservation (OPRHP) to adequately gauge potential effects on archeological and/or historic resources. A Stage 1A/lB survey will be required to determine the extent, if any, of impacts to these resources prior to issuance of any permits. The site is also located within the Orange County Agricultural District #2.
I find that, along with the local impacts from the proposed mining operation, there are potential impacts with regional and statewide significance affecting water resources (wellheads and adjoining river), archeological/historical and agricultural resources.
The second criterion to consider in this dispute is the breadth of jurisdiction. I find that both involved agencies could potentially act as lead agency for the SEQR review process.
As stated before, the jurisdictions of the Town are as follows: the jurisdiction of the Planning Board stems from the consideration of a special use permit and site plan approval; if the applicant chooses to apply for a zoning variance, the Zoning Board of Appeals will consider a zoning variance; if the applicant chooses to apply for a zone change, the Town Board will decide on whether to entertain a zone change.
The DEC has exclusive authority under the MLRL to regulate all aspects related to mining and reclamation. The breadth of the Department's jurisdiction under the MLRL, when combined with potential regional/statewide impacts, has been an important consideration in resolving other lead agency disputes for mining projects. The MLRL supersedes all other state and local laws related to the regulation of mining, except local land use or zoning ordinances. The MLRL provides 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 rights-of-way; man-made or natural barriers designed to restrict access, if needed, and their type, length, height and location; dust control; hours of operation; and whether mining is prohibited at the proposed location. DEC must incorporate into the permit those determinations that are found to be reasonable and/or must provide a written explanation to the local government if any or part of their determinations are not incorporated. It is clear that the jurisdiction of the Region 3 Office under MLRL regarding mining is much broader than the limited jurisdiction of the Town of Wawayanda. The third criterion is which agency has the capability to complete the environmental review. I find that both agencies possess, or could obtain through consultants, the staff to do a thorough environmental review. However, DEC staff has considerable experience in the review of mined land reclamation proposals throughout the region. This extensive experience reviewing mining applications affords DEC a greater capability to undertake the requisite environmental review for this project.
I conclude, based on the facts presented, the Region 3 Office of DEC should be lead agency for review under SEQR for the proposed Garten Sand and Gravel Mine because the potential impacts extend beyond the borders of the Town, and DEC has broader jurisdiction and greater capability to undertake the environmental review.
This decision in no way limits the jurisdiction of the Town of Wawayanda. The applicant must apply for and obtain all of the necessary Town approvals prior to commencing the action. I encourage the Town of Wawayanda to identify their environmental concerns so that the Region 3 Office can consider them in DEC's determination of significance.
Michael Zagata, Commissioner
Albany, New York
Distribution of Copies:
- Ann Yates, Chair, Town of Wawayanda Planning Board
New York State Department of Environmental Conservation:
- Michael Zagata, Commissioner
Jean-Ann McGrane, Director, Region 3
Additional Copies - Involved/ Interested Agencies: