Town of Claverack v. DEC (5-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: Wright Sand and Gravel Mine: Designation of lead agency for the review of a proposed 5-acre sand and gravel mine on a 76.8 acre parcel of land in the Town of Claverack, Columbia County
DISPUTING AGENCIES: Town of Claverack Zoning Board of Appeals
Region 4 Office, New York State Department of Environmental Conservation
This decision to designate the Town of Claverack Zoning Board of Appeals 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 potential impacts of this small mine are primarily local in nature and will be confined to the Town of Claverack.
The proposed project is the application of Samuel Wright III for construction and operation of a 5-acre sand and gravel mine on a 76.8-acre parcel of land owned by the applicant in the Town of Claverack, Columbia County. The site consists of vacant agricultural land and is located within Columbia County Agricultural District 13. In a letter to Mr. Richard Guthrie, received August 5, 1994, the applicant states that he has no plans to mine any of the other 71.8 acres of his property.
The Region 4 office of DEC has jurisdiction to issue or deny a mining permit under the authority of the Mined Land Reclamation Law (MLRL). The Town of Claverack Zoning Board of Appeals has jurisdiction to consider a special exception permit because mining is not a permitted use in the zone where the project site is located.
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 Town contends that given the size of the proposed operation, the impacts will be those usually associated with local land use decisions including traffic, noise, dust and hours of operation. The proposed mining site is located entirely within the Town of Claverack.
The DEC Region 4 staff request is based on the Department's preemptive role in reviewing the operational aspects of mining and reclamation. However, Region 4 points out that, given the small size of the proposed mine and the soil erosion control plans contained in the Mined Land Use Plan and Reclamation Report filed by the applicant, any potential impacts will be few in number and minor in nature.
DEC notes that traffic impacts could be considered regional in nature because they affect the Incorporated Village of Philmont which is located north of the project site and in the path of trucks traveling to and from the site. However, given the limited number of projected truck trips (less than 16 trips per day during peak operation) and the fact that the Village of Philmont is located in the Town of Claverack, this impact remains local in nature.
The Region also raises the prospect of adverse regional or statewide impacts to an unnamed tributary to the Agawamuck Creek which flows along the boundary of the site. The tributary is a Class "C" stream but it flows into the Agawamuck Creek, a trout spawning stream, Class "C(TS)". However, the "Mined Land Use Analysis-Map 1" submitted by the applicant states that there will be no mining activity within the stream and the "Written Report of the Mining and Reclamation Plan" states that surface water runoff will be directed into a settling basin and through a hay bale filter before entering the tributary.
Other likely impacts that will be generated by a project of this scope are those identified by the Town of Claverack; i.e., noise and dust. These local impacts can be addressed by the Town under its local ordinances.
The next criterion to consider in this dispute is the breadth of jurisdiction. Both agencies possess the necessary jurisdiction to act as lead agency for the review. The jurisdiction of the Town lies in the issuance or denial of a special exception permit under the Town's zoning ordinance. The DEC has exclusive authority under the MLRL to regulate all aspects of mining and reclamation. The breadth of the Department's jurisdiction under the MLRL, when combined with regional/state- wide impacts, has been an important consideration in resolving other lead agency disputes for mining projects in favor of DEC. However, the limited scope of the proposed action and the fact that the potential impacts are primarily local in nature favor the Town as lead agency notwith-standing the broad jurisdiction of DEC.
The third criterion is which agency has the capability to complete the environmental review. Both agencies possess the staff and expertise necessary for a thorough environmental review. DEC staff has considerable experience in the review of mined land proposals. The Town of Claverack, in its submission, claims that it has a record of promptly and capably handling environmental reviews through its use of consultants and that it has been thorough and responsible in these reviews.
I conclude, based on the facts presented, that the Town of Claverack Zoning Board of Appeals should be lead agency under SEQR for Samuel Wright III's proposed sand and gravel mine because the mine is small in size and the potential impacts are primarily local in nature.
This decision does not give the Town of Claverack 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 give 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 Claverack in reviewing this project.
Langdon Marsh, Commissioner
Dated: Sept. 14, 1994
Albany, New York
Distribution of Copies:
- The Honorable James Sherman, Supervisor, Town of Claverack
Lee Kolesnikoff, Chairman, Claverack Zoning Board of Appeals
Samuel Wright III, Applicant
David S. Robinson, Clough, Harbour & Associates
David F. Ingalls, Jr., P.E.
New York State Department of Environmental Conservation:
- Commissioner Marsh
A. Adamczyk, Director, Region 4
Additional Copies - Involved/ Interested Agencies: