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Town of Warwick 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: Designation of lead agency for the review of a proposed 15 acre limestone mine on a 51 acre parcel in Town of Warwick, Orange County.

INVOLVED AGENCIES: Town of Warwick Planning Board
Region 3, New York State Department of Environmental Conservation

This decision to designate the Town of Warwick Planning Board 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 impacts associated with the overall project proposal are primarily local in nature and the Town Planning Board has the broader powers and sufficient capability for conducting a thorough environmental review.

The proposed project is the application of Richard G. Penaluna to mine 15 acres of limestone from his 51 acre parcel of land in the Town of Warwick, Orange County. Also, after mining is completed (estimated life of 9-11 years), the applicant proposes to develop a 4 lot commercial subdivision on the site. The Town Planning Board must issue a special use permit to allow mining in a Residential - Agricultural Zoning District and give site plan approval for the proposed commercial subdivision. The Region 3 office of the DEC must issue a mining permit under the authority of the Mined Land Reclamation Law (MLRL) and a Freshwater Wetland Permit for the extraction of limestone within the 1001 Buffer Zone of the regulated wetland.

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 there are resources of potential regional and/or statewide importance on the mining site. For example, the site is located within a county agricultural district, and within a potential archaeologically sensitive area identified on State maps. Also, the mining operation will be within the 100' buffer zone of a state regulated wetland #PI-13. It has been noted by both DEC region 3 and the Town that the site has been previously mined or otherwise disturbed and therefore the impacts of regional or statewide significance do not appear to be an overriding consideration. The Town has identified a number of local impacts associated with not only the mining operation but also the future commercial development. These include: aesthetic resources, open space and recreation, transportation, noise and odor, and growth and character of the community. Since the commercial subdivision phase of the project will have more long-term local impacts, I believe that an agency at the local level is in a better position to address these issues.

The second criterion for consideration is which agency has the broadest governmental powers for investigation into the potential impacts of this development. In order for the mining phase of the project to be operated as proposed the applicant must obtain a special use permit from the Town of Warwick and a MLRL permit from DEC. Special use permits carry with them the presumption that the use is allowed in the applicable zone so long as established conditions/standards are met. The MLRL supersedes all other state and local laws related to the regulation of mining except for local land use or zoning ordinances. It is clear that the jurisdiction of the DEC under MLRL is much broader than the jurisdiction of the Town of Warwick as to mining. However, the second phase of the project, the commercial subdivision, will require site plan approval by the Town Planning Board and must be considered in conjunction with the mining phase of the project. The Town will have to make fundamental decisions regarding the local impacts of this development. Therefore, I find that the Town has the broadest powers to investigate the impacts of the overall project.

The third criterion is which agency has the greatest capability for providing the most thorough environmental analysis of the proposed action. While staff of the DEC Region 3 office have considerable experience and expertise in the review of a wide array of environmental issues which come before them, the Town of Warwick Planning Board has also demonstrated its experience and expertise for conducting environmental reviews on mining projects as well as proposed developments. The Town's more intimate knowledge of local specifics, especially in the areas of traffic, community growth and character, zoning and land use and aesthetic resources is also beneficial.

Based on a careful consideration of all facts presented, I find that the Planning Board of the Town of Warwick is the agency best suited to serve as lead in the analysis of the environmental impacts for the Penaluna mining and development project located in the Town of Warwick, Orange County. The Town is expected to conduct a well-coordinated environmental review which will adequately consider DEC concerns and all phases of project development. The DEC Region 3 office should be given full opportunity to receive information necessary to make decisions on those aspects of the project which are under DEC jurisdiction. In turn, the DEC Region 3 staff should make known to the Town any specific concerns and recommendations for this project at the earliest opportunity.. This decision does not give to the Town of Warwick additional jurisdiction over the proposed action with regard to mining. The Town's authority to regulate mining at the site is still limited by the provisions of the MLRL which gives to DEC the exclusive authority to regulate the extraction of minerals from the site and subsequent reclamation. The DEC, due to the exclusive nature of its jurisdiction, should work closely with the Town of Warwick in the conduct of the environmental review process.

/s/
Thomas C. Jorling, Commissioner
Dated: March 10, 1993
Albany, New York

Disputing Agencies:

New York State Department of Environmental Conservation:

Additional Copies - Involved/ Interested Agencies:

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