Rensselaer County v. Town of Nassau 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: Timber Land Consultants, Inc., Totem Heights Subdivision Town of Nassau, Rensselaer County
This decision to designate the Rensselaer County Department of Health (hereinafter referred to as "RCDH") as lead agency for the above project is made pursuant to 6NYCRR 617.6(e). My determination is based on the conclusion that the RCDH, because of the broader powers inherent in the review for realty subdivision approval, more appropriately meets the criteria enumerated at 6NYCRR 617.6(d)(1).
The proposed project is the subdivision of real property located at the southeastern shore of Burden Lake in the Town of Nassau, Rensselaer County. The applicant, Timber Land Consultant, Inc., proposes to subdivide the 118-acre parcel of land into 44 single-family residential lots. Individual septic systems and wells are proposed for each lot.
On April 23, 1985, the Town of Nassau notified the other involved agencies of its receipt of an application by Timber Land Consultants, Inc. for preliminary plat approval and indicated that it did not wish to be lead agency. The Department of Environmental Conservation Region 4 office (hereinafter referred to as "Region 4") and the RCDH responded to this notice on May 7, 1985 and May 22, 1985 respectively, indicating that neither agency wished to assume the role of lead agency. In light of the involved agencies inability to agree on lead agency, the Region 4 office in a letter dated June 11, 1985 requested that the Commissioner of Environmental Conservation resolve the dispute pursuant to 6NYCRR 617.6(e).
According to 6NYCRR 617.6(d)(1) in resolving lead agency disputes, I must consider: the location of the anticipated impacts; the breadth of the applicable jurisdictions; and the capability for providing a thorough environmental assessment.
The major environmental issues which need to be assessed include: sewage disposal, water supply, construction on steep slopes, contamination of groundwater, removal of mature forest, and nutrient loading to Burden Lake. Typically, these impacts are local in nature and would be limited to the Town of Nassau. However, the close proximity of the site to the Town of Sand Lake and the location of Burden Lake within the two towns indicates there is a potential for impact not only to the resources and residents of the Town of Nassau but also to the neighboring Town of Sand Lake. This fact indicates the need for a lead agency whose jurisdiction extends beyond the boundaries of any one town.
The basis for the RCDH's jurisdiction in this project is the authority delegated to it by the New York State Department of Health for realty subdivision approval. This delegation of authority gives to the RCDH the mandate to insure that realty subdivisions have adequate water supply and sewage disposal facilities. In addition, Section 6NYCRR 653.7 of the realty subdivision regulations gives the RCDH the authority to request additional information regarding: the methods to prevent contravention of surface and ground water quality standards; the methods for grading to prevent changes in soil percolation capacity and to provide for adequate collection and disposal of surface and groundwater; and the potential effect of the subdivision on environmental factors in surrounding areas. The breadth of this jurisdiction is clearly greater than the subdivision approval of the Town of Nassau, which must rely on the RCDH for technical assistance and the Department of Environmental Conservation Region 4 office whose jurisdiction is limited to an Environmental Conservation Law Article 15 permit for activities to be undertaken below the mean high water level of Burden Lake.
The RCDH also possesses the available staff and specific expertise to thoroughly assess the potential impacts due to the Timber Land proposal.
Based upon a careful consideration of all the facts available to me, I designate the RCDH as the lead agency for the review of the Timber Land Consultant's proposal for the Totem Heights subdivision in the Town of Nassau. The Town of Nassau and the Department of Environmental Conservation, as involved agencies, shall be available to RCDH to provide guidance in the determination of significance and substantive comments on the environmental impact statement, if one is needed.
Henry G. Williams Commissioner
Dated: July 10, 1985
Albany, New York
Distribution of Copies:
- I. King, Regional Director, Region 4
J. Lucas, Rensselaer County Department of Health
F. Smith, Attorney, Town of Nassau
New York State Department of Environmental Conservation:
- L. Marsh