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Brewster-Southeast Joint Fire District v. Town of Southeast Planning Board

New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency Under Article 8 of the Environmental Conservation Law


PROJECT: Application by Board of Fire Commissioners of the Brewster-Southeast Joint Fire District to construct a new substation on a 4.5 +/- acre parcel located at 399 Milltown Road in the Town of Southeast, Putnam County.

DISPUTING AGENCIES: Brewster-Southeast Joint Fire District and Town of Southeast Planning Board

This decision to designate the Brewster-Southeast Joint Fire District (Fire District) 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 (ECL) and Title 6 of the New York Codes, Rules and Regulations (6 NYCRR) Part 617. This decision is based on my findings that the Fire District has the broader jurisdiction to regulate all aspects of design, construction and operation of the proposed fire substation facility.

The project is the proposal by the Fire District to construct a new 14,399 +/- square foot fire substation (including office space, apparatus bays, storage for approximately 14,000 gallons of water, facility for decontamination / laundry, parking and access and training facilities) on a 4.5 +/- acre parcel at 399 Milltown Road in the Town of Southeast in Putnam County. The site is currently zoned residential (R60 and R160). The Town of Southeast Planning Board states that the proposed project will require the Planning Board to issue Final Site Plan Approval. Potential zoning variance requests may also have to be acted on by the Southeast Town Zoning Board of Appeals.

Based on information provided to this office, the following agencies were identified as having jurisdiction to make discretionary decisions or approval affecting one or more components of this action.

  • the Fire District is the project sponsor and will be responsible for project design and funding, as well as general oversight of all construction activities;
  • the Town of Southeast Planning Board has asserted jurisdiction over site development plans, plus authority to review land use applications, including wetland permit applications, within the Town;
  • the Town of Southeast Zoning Board of Appeals would have jurisdiction should area variances for fire substation development plan and parking setbacks be required;
  • the New York City Department of Environmental Protection (DEP) has independent regulatory authority for a Stormwater Pollution Prevention Plan (SPPP) pursuant to Section 18-39(b)(3)(iv) fo the Rules and Regulations for the Protection from Contamination, Degradation, and Pollution of the New York City Water Supply and Its Sources (Watershed Rules and Regulations). DEP also has joint review (along with the Putnam County Health Department) and approval authority for the proposed subsurface sewage treatment system that will be installed as part of this project;
  • the Putnam County Health Department has joint approval authority with DEP (above) for the proposed subsurface sewage treatment system that will be installed as part of this project, plus authority to approve the proposed new water well;
  • the New York State Department of Environmental Conservation (NYSDEC) has authority for project coverage under the general Stormwater Management - State Pollution Discharge Elimination System (NYS SPDES GP-02-01);
  • the Putnam County Department of Highways & Facilities has authorization for review and approval of Project Plans that involve work on and over county roads (Milltown Road).

Lead agency coordination letters were sent to the above agencies, as well as several interested parties, on January 12, 2007 by the Fire District. Responses were received from the NYC DEP and the Town of Southeast Planning Board. The NYC DEP agreed to the Fire District acting as lead agency and offered several comments regarding potential issues related stormwater management and water quality protection. The Town of Southeast Planning Board contested the lead agency claim by the Fire District and provided initial issue concerns regarding location of the project within a locally designated town historic district (Milltown Area). No other involved agencies responded to either endorse or oppose the Fire District acting as lead agency for this SEQR review.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR Part 617.6(b)(5)(v). These are:

  • whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);
  • which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
  • which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

The first criterion relates to whether the anticipated impacts are primarily of statewide, regional or local significance. There is really no real distinction between the disputing agencies as to the first criterion, as both agencies are local entities and impacts identified in both of their filings are primarily of local significance. The Fire District, in its lead agency submission material including the full Environmental Assessment Form (EAF), identified potential local issues related to: construction on slopes; construction continuing longer than one year in duration; stormwater management in regard to groundwater, locally regulated wetlands and perennial streams; and the presence of a locally designated historic district (the Milltown Area). The Fire District also discussed emergency service response in terms of both local and regional need. The Town of Southeast Planning Board has identified local potential issues similar to those raised by the Fire District, and local traffic considerations plus concerns that community character and aesthetic impacts may result from the project being located within the local Historic District. Therefore, potential impacts identified with the proposed project at this location are all primarily local issues. Accordingly, I cannot reach a determination based on the first criterion.

The second criterion, breadth of authority, favors the Fire District. The Fire District, as sponsor, designer, and agency principally responsible for construction oversight and funding of the proposed action, has the ability to add, change and even delete various project elements through control of design and finance. This is important because the SEQR review often identifies potential issues of environmental concern which require plan modification to avoid or reduce impact. As the sponsoring agency, the Fire District is in the best position to make changes and modifications to plans in response to potential impacts.

The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. The Town of Southeast Planning Board identified working familiarity with land development reviews in the town, as well as staffing of a full time administrator and the regular use of professional consultants familiar with planning, engineering and environmental review. The Fire District identified in-house personnel familiar with the project history and the use of professional engineering consultants with extensive expertise in environmental review. Both agencies either have in-house staff or could arrange for consultant services to assist it in conducting an environmental review of this proposed development. Thus, I find that both agencies possess, or could obtain through consultants, the expertise to conduct a thorough environmental review, and my determination is not changed based on the third criterion.

Given the above, I conclude that the Brewster-Southeast Joint Fire District should be lead agency for the SEQR review of this proposal by the Board of Fire Commissioners of the Brewster-Southeast Joint Fire District to construct a new fire substation at 399 Milltown Road in the Town of Southeast.

In designating the Fire District as lead agency for the SEQR review of this project, it is expected that the environmental review will be more than a "needs analysis" concerning the provision of fire protection but will also reflect consideration and analysis of issues and concerns raised during the lead agency coordination process. The decision that the Fire District shall serve as lead agency in no way limits the jurisdiction or responsibility of any other involved agencies. The applicant must still apply for and obtain all necessary approvals and permits from other agencies. I encourage the Town of Southeast Planning Board, with other agencies, to continue to identify and communicate to the Fire District all of its environmental concerns so that the Fire District can consider them when it determines the significance of the proposed action.

/s/
Alexander B. Grannis, Commissioner

Dated: May 18, 2007
Albany, New York


Distribution of Copies

Disputing Agencies/Applicant:
Willis H. Stephens, Jr., Town Attorney, Town of Southeast
Town of Southeast Planning Board
Frank T. Simeone, Attorney for the Brewster-Southeast Joint Fire District

Involved Agencies:
Town of Southeast Town Board
Town of Southeast Zoning Board of Appeals
Putnam County Department of Highways & FacilitiesPutnam County Department of Health
Putnam County Department of Planning & Development
New York City Department of Environmental Protection

New York State Department of Environmental Conservation:
William Janeway, Regional Director, DEC Region 3
Margaret E. Duke, Regional Permit Administrator, DEC Region 3
Alison Crocker, Acting Deputy Commissioner and General Counsel
Betty Ann Hughes, Division of Environmental Permits, Chief - SEQR and Training


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