Department of Environmental Conservation

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County of Herkimer and Town of Herkimer

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

PROJECT: Application by the County of Herkimer to construct a new County Correctional Facility within Herkimer County.

DISPUTING AGENCIES: County of Herkimer and Town of Herkimer

This decision to designate the County of Herkimer as lead agency for the conduct of the environmental review under the New York State Environmental Quality Review Act (SEQR) for the above project is made pursuant to Article 8 of the New York State (NYS) Environmental Conservation Law (ECL) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), Part 617. This decision is based on my finding that several of the potential impacts of the proposed facility are of regional or wider significance, and that the County of Herkimer has the greatest control over all aspects of design, construction and operation of the proposed correctional facility.

The project is the proposal by the County of Herkimer to construct a new correctional facility, proposed to consist of 2 stories containing approximately 130 cells and totaling approximately 93,000 square feet of area. A preferred site has been identified on a parcel of land of about 26 acres on the west side of NYS Route 28, north of the Village of Herkimer and approximately 1200 feet north of the intersection of NYS 28 and Shells Bush Road, in the Town of Herkimer, Herkimer County. Extension of public water and sewer to the facility is currently proposed, but on-site provision of sewer and water will also be considered in case extensions are not permitted or feasible.

The preferred site is zoned agricultural. Zoning classifications of lands adjacent to the preferred site include agricultural, industrial and R-3 residential. Land uses in the vicinity of the preferred site include agriculture, automobile recycling, and residential housing. Herkimer County generally is a rural county with substantial agricultural and forested areas; it extends from the southwestern Adirondacks to the NYS Route 5/NYS Thruway and NYS/United States Route 20 corridors, and most of its population centers are located in or near those highway corridors.

Based on information provided to this office, the following agencies were identified as having one or more discretionary decisions which could affect one or more components of the proposed action:

  • the County of Herkimer (County) is the project sponsor who is or will be responsible for site selection, project design, and funding, as well as general oversight of all construction activities and eventual operation of the correctional facility;
  • the Town of Herkimer (Town) has asserted potential jurisdictions based on the County's preferred site, including possible zoning changes by the Town Board; site plan review by the Planning Board; and building and construction codes enforcement plus building permit and certificate of occupancy issuance;
  • the Town and County concur that the Town would need to approve any extensions of sewer or water systems to serve the preferred site;
  • the County asserts that the NYS Department of State will be responsible for code review and issuance of a building permit;
  • the NYS Commission on Corrections would be responsible for review and approval of the correctional facility configuration, operations and staffing;
  • the NYS Department of Health would be responsible for review and approval of a water supply system, whether public or private, and review and approval of food preparation facilities;
  • the NYS Department of Environmental Conservation would be responsible for review and approval of waste water disposal plans, whether extension of an existing system or development of an on-site system; approval of Storm Water Management Plans prepared for the site; and review and issuance of a water supply application if a public water system extension is selected; and
  • the NYS Department of Transportation may need to approve a traffic impact study and issue highway work permits for site access plus water or sewer extensions.

The County and Town are the only agencies disputing for lead agency. The County coordinated by letter with potentially involved and interested agencies on April 18, 2007, and advised all that it was proceeding to act as lead agency. The Town objected by letter dated April 27, 2007. The Town and County then attempted for some time to resolve the matter between themselves; when that failed, the County initiated the current dispute. No responses to the County's initial coordination letter from any other agencies were included in any filings, nor have any other agencies commented on this dispute. Letters concerning this dispute were received, however, from attorneys representing families who live adjacent to the preferred site as well as from one individual neighbor of the preferred site.

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.

In considering the first criterion, I must look at the range of anticipated impacts and determine whether they are primarily of statewide, regional or local significance. The County identified several potential impacts from construction and operation of a new correctional facility that it described as regional, including visual impacts, traffic and stormwater management. The Town highlighted potential impacts related to road usage and proximity to streams, noting that the preferred site is only a few yards from West Canada Creek, a feeder to the NYS Canal System that it also described as, "one of the finest stocked trout streams in the state". The Town defined these as locally significant impacts because the preferred site is situated within the town boundaries.

Although the preferred site is located entirely within the boundaries of the Town, impacts such as visual intrusion, traffic and road usage, stormwater runoff, and stream protection can typically extend well beyond local boundaries given the scale of the proposed correctional facility, and they thus represent regional impacts. Further, these impacts are likely to be potentially significant based on the size and nature of use proposed, regardless of the specific site; for example, the nighttime lighting typical of a prison, applied to a structure covering in excess of a full acre, would create a prominent visual change from substantial distances. Also, while provision of water or sewer services beyond the existing municipal service area would be a local transaction, supply and capacity questions have the potential to impact communities beyond the proposed project site and service area. Therefore, because of the wide range of impacts with regional or broader significance, I find that the lead agency should be other than a local entity. Consideration of the first criterion thus favors the County as lead agency.

The second criterion, breadth of authority, also favors the County. The County, as sponsor, designer, and the agency principally responsible for construction oversight and funding of the proposed action, has the ability to change, add, and even delete any project elements to avoid or reduce impacts through its control of location, design and finance. Based on the preferred site, the Town asserts municipal authority over all issues related to site plan and site development; zoning; building and construction codes; and issuances of building permits and certificates of occupancy. While noting that some of the cited jurisdictions are ministerial and would therefore not be a sufficient basis for the Town to serve as SEQR lead agency, no further exploration of the Town's asserted jurisdiction(s) is needed. As the sponsoring agency, the County is in the best position to not merely identify but also to ensure implementation of any avoidance or mitigation measures necessary to avoid or minimize potential impacts from the proposal as they may be revealed during the environmental review, because it has direct authority over site selection, construction and administration of the facility. Accordingly, consideration of the second criterion leads me to the conclusion that the County has the broadest authority to implement the environmental review of this project.

The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. Since I can make a designation of lead agency without relying on this third criterion, I need not address it.

Given the potential for multiple impacts of a regional nature, and the broad authority of a project sponsor to avoid or mitigate impacts through its siting, design and operational decisions, I conclude that the County of Herkimer should be lead agency for the SEQR review of a new Herkimer County Correctional Facility. The decision that the County shall serve as lead agency for the SEQR review of this project in no way limits the responsibilities of other involved agencies, so the County must still seek and obtain all necessary approvals and permits from other agencies or authorities with jurisdiction over any aspect of the proposed project. I also encourage the Town and other involved or interested agencies or groups to continue to articulate all of their environmental concerns to ensure that the County addresses them when it conducts the environmental review of the proposed action.

Dated: December 4, 2007

Alexander B. Grannis, Commissioner
Albany, New York

Distribution of Copies

Disputing Agencies/Applicant:
Willis H. Stephens, Jr., Town Attorney
Dominic Frank, Supervisor
Town of Herkimer
114 North Prospect Street
Herkimer, NY 13350

Frank T. Simeone, Attorney for the County of Herkimer
James Wallace, Jr., Herkimer County Administrator
109 Mary Street, Suite 1310
Herkimer, NY 13350

Involved Agencies
New York State Commission on Corrections
New York State Department of Health
New York State Department of Transportation
New York State Department of State Region 3, Systems Operations
Judy Drabicki, Regional Director, DEC Region 6
Larry Ambeau, Regional Permit Administrator, DEC Region 6

Menter, Rudin & Trivelpiece, P.C.
Suite 200, 308 Maltbie Street
Syracuse, New York 13204-1498
Att'n: Thomas J. Fucillo, Esq.

Francis M. Palczynski
3175 State Rd. 28
Herkimer, NY 13350

New York State Department of Environmental Conservation, 625 Broadway, Albany:
Lawrence H. Weintraub, Office of General Counsel
Betty Ann Hughes, Division of Environmental Permits, Chief - SEQR and Training

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