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Town of Southeast Highway Department, Town of Carmel Highway Department and Town Board of the Town of Carmel

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

PROJECT: Construction of Enoch Crosby Road Extension, Towns of Southeast and Carmel, Putnam County

DISPUTING AGENCIES: Town of Southeast Highway Department, Town of Carmel Highway Department and Town Board of the Town of Carmel

I have been asked to designate a lead agency to conduct an environmental review of the proposed Enoch Crosby Road Extension project located in the Town of Southeast (Southeast) and the Town of Carmel (Carmel), Putnam County under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State Environmental Conservation Law [ECL]; see also, Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 617]). The disputing agencies are the Town of Southeast Highway Department (Southeast Highway Department), the Town of Carmel Highway Department (Carmel Highway Department) and the Town Board of the Town of Carmel, (Carmel Town Board). The designation of the Carmel Highway Department as lead agency is based on my finding that the local impacts are likely to occur predominantly in the Town of Carmel, and that the Carmel Highway Department has the broadest jurisdiction to investigate the impacts and to conduct the review of this project.

Action and Site

The proposed action involves a proposal by the Town of Southeast Highway Department to extend Enoch Crosby Road, a stub road, in the Town of Southeast, approximately 450 feet to Kelly Road in the Town of Carmel. Currently, residents who live along the Enoch Crosby Road have ingress and egress through Maple Road, which according to the Town of Southeast Highway Superintendent is in need of improvement. The Southeast Highway Superintendent indicates that it would be more cost effective and in the public interest to connect Enoch Crosby Road to Kelly Road than to improve Maple Road.

The area in which the road extension would occur is steep with slopes of greater than 12 percent; the Carmel Highway Superintendent and the Supervisor of the Town of Carmel report that this section of road is also wet and wooded. In addition, according to the Carmel Highway Superintendent, approximately 5300 feet of roadway within the Town of Carmel will need to be improved and widened to meet safety requirements for a town "through road" and to accommodate traffic that may be generated by the connection of Enoch Crosby Road to Kelly Road1.


Regulatory Setting

The regulatory roles for each of the disputing parties, based on the papers submitted in this dispute, are as follows2: the Southeast Highway Department is responsible for designing and constructing the 450 feet of extension road within Southeast, as well as maintenance after construction is completed; the Carmel Highway Department would have responsibility for affecting and maintaining changes that may be necessary along and adjacent to Kelly Road which may total 5300 linear feet; and the Carmel Town Board would have jurisdiction to approve funding for all necessary road work within Carmel that may be required as part of the connection of Enoch Crosby Road and Kelly Road. The Town of Carmel Supervisor also contends that the connection of Enoch Crosby Road to Kelly Road requires the consent of the Carmel Highway Superintendent pursuant to the New York State Highway Law3, regardless of whether they necessitate any changes to Kelly Road.

The role of lead agency may be assumed only by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. All three disputing parties appear to satisfy the criteria to be considered involved agencies, and all three have stated their interest in serving as lead agency. No other potentially involved agencies have sought lead agency status or commented on the request for lead agency designation, except that the New York State Department of Environmental Conservation, Region 3, consented to allow the Southeast Highway Department to serve as lead agency.

Discussion

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

  1. 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);
  2. which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
  3. which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

A. First Criterion

The first criterion asks whether the anticipated impacts of the proposed action are of State, regional or local significance. As the competing agencies are local, the question is whether the predominant impacts are to Southeast or to Carmel. In this case, it is clear that the construction-related impacts, which are primarily local in nature, will occur in both towns: in Southeast as a result of 450 feet of new road extension and in Carmel as a result of necessary adjustments and reconstruction needed along approximately 5300 feet of residential roadway. Construction-related impacts which include noise, dust and traffic will affect both municipalities. However, potential impacts from construction and increases in traffic that may result from this proposal will predominantly affect an existing residential neighborhood in the Town of Carmel which, according to the Town Supervisor of the Town of Carmel, is already heavily developed. The work in Southeast is primarily in an area of undeveloped land. Thus, the anticipated local impacts favor the Carmel Town Board or the Carmel Highway Department to serve as lead agency.

B. Second Criterion

The second criterion, breadth of authority to conduct the environmental review, favors the Carmel Highway Department. The connection of Enoch Crosby Road with Kelly Road appears to require the consent of the Carmel Highway Superintendent pursuant to the New York State Highway Law. In addition to this approval, the Carmel Highway Superintendent through the Carmel Highway Department may need to reconstruct and widen approximately 5300 feet of roads within Carmel to provide adequate traffic control, and proper resident and environmental protection. The Carmel Town Board will need to find funds to support the work that will be needed in Carmel, as well as to appropriate such funds to the Carmel Highway Department.

Although the Carmel Town Board has sole discretion over whether to fund road work within the Town of Carmel that may result from the project, the Carmel Highway Department possesses the broadest authority within the Town of Carmel. The Carmel Highway Department will need to perform all required work along the 5300 feet of town residential roads necessitated by the connection, and the Carmel Highway Superintendent must consent to the road connection under the State Highway Law.

Notwithstanding the Carmel Town Board's role in funding the project, I find that the second criterion favors the Carmel Highway Department to assume the lead agency role to conduct the SEQR review for this action.

C. Third Criterion

The third criterion asks which agency possesses the greatest capability for providing the most thorough environmental assessment or whether the proposed action favors none of the competing agencies. As the Carmel Town Board and Carmel Highway Department as well as the Southeast Highway Department have either staff or the ability to retain consultants to assist in the review of the road project, I need not rely on this criterion for my decision.

Finding

I find that the Carmel Highway Department should serve as the lead agency for the environmental review of the proposed extension of Enoch Crosby Road. This decision is based on the local nature of potential impacts from construction and increased traffic along approximately 5300 feet of Carmel town roads, and the Carmel Highway Department's breadth of jurisdiction over the necessary construction and the need to consent to the road connection.

This designation in no way changes or diminishes the responsibilities or authority of the other involved agencies with jurisdiction over the project. In designating the Carmel Highway Department to serve as lead agency, I remind it to work cooperatively with the Carmel Town Board and Town of Southeast to find solutions to the Enoch Crosby Road controversy while remaining aware of all potential impacts that have been identified during this lead agency dispute, or which may be identified during the course of the environmental review. Continued consultation with the other involved and interested agencies will enable the Carmel Highway Department to better identify the full range of potential impacts of the project and, if necessary, explore ways to avoid or minimize those impacts.

1Before the commencement of the lead agency dispute, the road extension was the subject of litigation between the Town of Carmel and the Town of Southeast. In that case, the Supreme Court found that the Town of Southeast commenced site work for the Enoch Crosby Road project without required permits and approvals. See Mueller v. Town Board of the Town of Southeast, Sup Ct, Putnam County, June 2, 2009, O'Rourke, J., index No. 1055/2009.

2For purposes of resolving this dispute, I accept the parties' assertions of jurisdiction.

3Highway Law §184 appears to require the agreement of the highway superintendents of adjoining municipalities as to the laying out of a new highway or the alteration of an old highway that connects the two municipalities.


/s/
Alexander B. Grannis, Commissioner
Dated: March 9, 2010
Albany, New York


Distribution of Copies:

Disputing Parties
Town of Southeast Highway Department, Attn: Kevin Palmer, Superintendent
Town of Carmel Highway Department, Attn: Michael Simone, Superintendent
Town of Carmel Town Board, Attn: Kenneth Schmitt, Supervisor

New York State Department of Environmental Conservation
Lawrence H. Weintraub, Assistant Counsel, Office of General Counsel, Central Office
Robert Ewing, Division of Environmental Permits, Central Office

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