Town of Clermont 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 58 acre sand and gravel mine on a 70 acre parcel in the Town of Clermont in Columbia County.
DISPUTING AGENCIES: Town of Clermont, Zoning Board of Appeals
Region 4 Office, New York State Department of Environmental Conservation
This decision to designate the Department of Environmental Conservation (DEC) Region 4 office 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 Department of Environmental Conservation has the broadest governmental powers for the investigation of the impacts of the proposed action, as well as the greater expertise required for a thorough environmental review.
The proposed project is the application of Karl Hettling to mine sand and gravel from 58 acres of a 70 acre parcel in the Town of Clermont, Columbia County. The Region 4 office of the DEC must issue a mining permit under the authority of the Mined Land Reclamation Law (MLRL) and the Town of Clermont Zoning Board of Appeals must issue a special use permit to allow mining in a Residential-Agricultural Zoning District.
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 although the physical location of the impacts will be primarily local some of the resources to be affected have regional and/or statewide importance. For example: a portion of the site is located in a potential archaeologically sensitive area as designated by the New York State Office of Parks, Recreation and Historic Preservation; substantially contiguous to the project site are several structures that are listed on the State and National Register of Historic Places; the site is located in a county-designated agricultural district; and directly to the west of the site is a state regulated freshwater wetland (CL-15). Other anticipated effects such as traffic, visual and noise impacts to the Town of Clermont recreational field and the adjacent commercial district in the Hamlet of Clermont are local in scope. Since the location of the impacts does not strongly favor either the local or state agency I must examine the remaining two criteria. The next criterion to consider in this dispute is the breadth of jurisdiction. In order for the project to be operated as proposed the applicant must obtain a special use permit from the Town of Clermont 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 conditions of the Town of Clermont's special use permit as identified by the Town appear to be an attempt to provide for local regulation of the mining industry.
This request for resolution of a lead agency dispute is not dissimilar to several others I have been called on to make relating to the MLRL (ECL Section 23-2701 et seq.) . The MLRL supersedes all other state and local laws related to the regulation of mining except for local land use or zoning ordinances. Recent MLRL legislation has provided 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 right-of-way; manmade or natural barriers designed to restrict access if needed, and if affirmative, the type, length, height and location of barriers; 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 the determinations have not been incorporated. It is clear that the jurisdiction of the DEC under MIRL is much broader than the jurisdiction of the Town of Clermont given the fact that conditions of the special use permit that would attempt to control the method of operation and the duration of the operation would likely be preempted by the MLRL.
The third criterion also favors DEC as lead agency. DEC staff have considerable experience in the review of mined land proposals and site reclamation. The level of expertise available to DEC would be difficult for any town to obtain even through the use of consultants.
I conclude based on the facts presented, that the Region 4 office of the Department of Environmental Conservation best serves the function of lead agency for conduct of the environmental review for the Hettling Mining application due to its broad jurisdiction under the MLRL and the expertise of staff in the review of mining and reclamation projects.
This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review the proposed action and to assist the DEC in completion of the environmental review process. The Region 4 office has indicated that it is likely that an environmental impact statement (EIS) will be required. The issues raised by the Zoning Board of Appeals must be considered by the DEC in making their determination of significance.
Marc Gerstman for Thomas C. Jorling
Albany, New York
Distribution of Copies:
- Anthony Adamczyk, Director, Region 4 Office, NYS Dept. Env. Cons.
William Banks, Supervisor, Town of Clermont
Peter Cichetti, Chairman, Town of Clermont, ZBA
David Crawford, Engineer, Town of Clermont
Karl Hettling, Applicant
New York State Department of Environmental Conservation:
- Commissioner Jorling
Additional Copies - Involved/ Interested Agencies: