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Village of Briarcliff Manor vs. Village of Tarrytown, Westchester County

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

PROJECT: Proposed Village of Briarcliff Manor Water Supply Project

DISPUTING AGENCIES: Village of Briarcliff Manor vs. Village of Tarrytown, Westchester County

I have been asked to designate a lead agency to conduct the environmental review of the proposed water supply project for the Village of Briarcliff Manor under the New York State Environmental Quality Review Act (SEQR) [Article 8 of the New York State (NYS) Environmental Conservation Law (ECL); Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), Part 617]. This designation of the Village of Briarcliff Manor (Briarcliff Manor) as lead agency for this review is based on my finding that Briarcliff Manor is the most appropriate lead agency given its substantial authority over the proposed project.

ACTION AND SITE

The action involves the proposal by the Village of Briarcliff Manor to replace components of its existing water supply system with a new water source and transmission system. Construction will take place in parts of five municipalities: Village of Tarrytown, Town of Greenburgh, Village of Sleepy Hollow, Town of Mt. Pleasant and Village of Briarcliff Manor. The new system would include:

  • constructing a new water supply tap from the Catskill Aqueduct of the New York City (NYC) water supply system, and associated siphon pumping and priming system pumps;
  • replacing Tarrytown's existing vacuum priming pumps;
  • upgrading and improving existing elements of the water transmission system, such as a new priming valve chamber in the new siphon in Greenburgh and improvements and upgrades to the existing Tarrytown and Sleepy Hollow Meter building in Greenburgh;
  • installing 440 feet of 24 inch pipeline in Greenburgh;
  • constructing a new Briarcliff Manor pump station in Tarrytown at Tarrytown Lakes;
  • constructing an extension of the existing 30-inch water transmission main in Tarrytown, from the Tarrytown pump station to the new Briarcliff Manor pump station;
  • extending the existing water transmission line in Tarrytown to connect the proposed Briarcliff Manor pump station to the Executive Boulevard transmission main;
  • installing approximately four miles of new water transmission through Tarrytown, Sleepy Hollow, Mount Pleasant and Briarcliff Manor to carry water from the proposed Tarrytown Lakes pumping station into the Village of Briarcliff Manor; and
  • discontinuing use of the existing Briarcliff Manor tap from the Croton Aqueduct, once all improvements are installed.

PROJECT HISTORY

Briarcliff Manor's water system serves the Village of Briarcliff Manor as well as some residents of Sleepy Hollow and Ossining. The system currently receives its water supply from a tap on the Croton Aqueduct of the New York City water supply system. Through a series of orders and agreements, the New York State Department of Health (DOH) directed Briarcliff Manor to either filter its water supply or find another supply; the DOH has approved a tap from the New York City Catskill Aqueduct as a replacement source. Briarcliff Manor now proposes to install a new Catskill Aqueduct tap directly upstream of Tarrytown and Sleepy Hollow's tap in Greenburgh, and in the process upgrade the existing Tarrytown vacuum pumping system as well as install new pumping capacity to enable service to the Briarcliff Manor system. All work at the tap, plus all additional work needed to construct the new Briarcliff Manor system, would be paid for by Briarcliff Manor. Before undertaking initial design work, Briarcliff Manor entered supporting agreements with Tarrytown and other affected municipalities related to its proposal to create a new water system based on a Catskill Aqueduct tap.

REGULATORY SETTING

Briarcliff Manor is the sponsor of the planned replacement water supply tap and system; it is also paying for all new or upgraded facilities necessary in its own or within joint systems. Tarrytown asserts that it must issue local road opening permits and site plan approvals. Briarcliff Manor asserts that Tarrytown has already agreed to give the necessary easements and licenses to Briarcliff Manor for use of the pump station site, and further questions Tarrytown's site plan review jurisdiction.

The role of lead agency may only be assumed by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. Solely for the purpose of resolving this lead agency dispute pursuant to the criteria in 6 NYCRR Part 617.6, I accept the position of Tarrytown in regard to its jurisdiction. Thus, Briarcliff Manor and Tarrytown will both be considered potentially involved agencies under SEQR. Further, Briarcliff Manor has asked to be designated as lead agency for the review of the new water supply system while Tarrytown has asked to be designated as "co-lead agency" along with Briarcliff Manor for that review. The SEQR regulations do not explicitly recognize agencies serving as co-lead agencies, so I will resolve this dispute by designating a single lead agency1.

Based on Briarcliff Manor's project description and layout, as currently proposed, several other permits or approvals will be needed for this project to proceed, including:

  • Mt. Pleasant, Sleepy Hollow and Greenburgh - local road opening permits;
  • Greenburgh and Tarrytown- potential site plan approval;
  • Westchester County Department of Public Works - notification for utility work in roads
  • Westchester County DOH - design for pump station and transmission main aqueduct connection;
  • New York City DEP - water supply agreement; engineering approval; and for irrevocable use of land permit;
  • New York State DEC - Water Supply Permit; Clean Water Act Section 401 Certification and General Permit for Stormwater Discharges from Construction Activities under New York State Pollution Discharge Elimination System (SPDES);
  • New York State DOT - permit for utility work in state roadways;
  • New York State DOH - approval for design for pump station and transmission main aqueduct connection;
  • US Army Corps of Engineers - Nationwide Permit 39 for Commercial and Institutional Developments and Nationwide Permit 7 for Outfall Structures and Associated Infall Structures.

None of these other agencies have entered into this lead agency dispute2.

DISCUSSION

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

  • 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.

A. First Criterion

The first criterion asks whether potential impacts from the proposed action are of local, regional or statewide significance. Both disputing agencies acknowledge that the project would likely cause a variety of impacts at the local level from construction in the towns of Greenburgh and Mt. Pleasant and in the villages of Briarcliff Manor, Tarrytown and Sleepy Hollow. Tarrytown emphasizes the potential for local impacts to its municipality because the new pump station and portions of the transmission line are expected to be constructed within, and on property owned by, the Village of Tarrytown. Based on information provided by Briarcliff Manor, the Village of Tarrytown has already agreed to give necessary easements and licenses to Briarcliff Manor for the use of land at the pump station site.

In considering the first criterion, I conclude that the most significant potential impacts of this project are primarily local. Since both of the disputing agencies are local in their jurisdiction, I cannot designate a lead agency based on the first criterion.

B. Second Criterion

The second criterion, breadth of authority to conduct the environmental review, strongly favors Briarcliff Manor. Briarcliff Manor is the agency with control over all phases of the project including sole actual authority over the design, funding and conduct of construction of the project. Land use authority that may be held by Briarcliff Manor is restricted to lands within its municipal boundaries. Tarrytown asserts site plan review and other land use jurisdictions, which would similarly be restricted to those lands within the municipal boundaries of the Village of Tarrytown.

Briarcliff Manor, 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 environmental impacts through its control of location, design and finance. This authority is substantially broader than any land use controls; thus, no further exploration of the Town of Tarrytown's asserted jurisdiction is needed.

Based on the second criterion, I conclude that Briarcliff Manor is the most appropriate lead agency for the proposed Briarcliff Manor Water Supply Project.

C. Third Criterion

In considering the third criterion, which agency has the greatest capability for providing the most thorough environmental assessment of the proposed project, both disputing agencies appear to have the capacity to conduct an adequate and comprehensive environmental review of the entire project either using staff or with the assistance of contracted assistance. Since I can make a designation of lead agency without relying on this third criterion, I need not address it further.

FINDING

In summary, based on its breadth of authority for overall aspects of the proposed project, I conclude that the Village of Briarcliff Manor should serve as lead agency for the environmental review of the proposed water supply project for Briarcliff Manor. This decision in no way changes or diminishes the responsibilities and jurisdictions of other involved agencies. Accordingly, I encourage the Village of Tarrytown and the other involved agencies to actively participate in all phases of the environmental review of this project to identify information and impact evaluations needed to support all necessary regulatory decisions. Specifically, the environmental review record must provide environmental information necessary to support the decisions of each of those agencies. I further encourage the Village of Briarcliff Manor to openly accept and consider the issues raised by other involved and interested agencies.

1 See, Commissioner's Lead Agency Decision, Proposed Trump Indian Hill Golf Club, page 2, December 28,1999; Commissioner's Lead Agency Decision, Belleayre Resort at Catskill Park, page 2, March 20, 2000

2 The United States Army Corps of Engineers (USACE), as a federal agency, is not eligible to serve as lead agency under SEQR.


Dated: 9/15/08

/s/

Alexander B. Grannis, Commissioner
Albany, New York

Distribution of Copies

Disputing Agencies/Applicant

Jeffrey S. Shumejda, Village Attorney
Village of Tarrytown
Sleepy Hollow Bank Building
47 Beekman Avenue
Sleepy Hollow, NY 10591

Michael S. Blau, Village Administrator
Village of Tarrytown
One Depot Plaza
Tarrytown, NY 10591

Lynn E. Weinig, Esq.,
Counsel for the Village of Briarcliff Manor
Wormser, Kiely, Galef & Jacobs LLP
399 Knollwood Road
White Plains, NY 10603

Ingrid Richards, Acting Village Manager
Village of Briarcliff Manor
1111 Pleasantville Road
Briarcliff Manor, NY 10510

Involved / Interested Agencies

Paul J. Feiner, Town Supervisor
Town of Greenburgh
177 Hillside Avenue
Greenburgh, NY 10607

Robert F. Meehan, Town Supervisor
Town of Mt. Pleasant
1 Town Hall Plaza
Valhalla, NY 10595

Dwight Douglas, Village Administrator
Village of Sleepy Hollow
28 Beekman Avenue -2nd Floor
Sleepy Hollow, New York 10591

Paul Aggarwal
New York City DEP
465 Columbus Avenue
Valhalla, NY 10595

Joseph Coleman
New York City DEP
465 Columbus Avenue
Valhalla, NY 10595

Michael Vissichelli
US Army Corps of Engineers - NY District
Eastern Permits Section
26 Federal Plaza, Room 2109
Jacob K. Javits Federal Building
New York, NY 10278-0090

Delroy Taylor / Paul Kutzy
Westchester County Department of Health
145 Huguenot St., 8th Floor
New Rochelle, NY 10801

Kenneth Franco
Region 8, NYS DOT
Eleanor Roosevelt State Office Building
4 Burnett Boulevard
Poughkeepsie, NY 12603

Margaret Duke, RPA
Region 3, NYS Department of Environmental Conservation

New York State Department of Environmental Conservation, Albany

Lawrence H. Weintraub, Esq., Office of General Counsel
Betty Ann Hughes, Division of Environmental Permits


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