Lead Agency Dispute: County of Herkimer and Village 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 the Village of Herkimer, County of Herkimer.
DISPUTING AGENCIES: County of Herkimer and Village of Herkimer
I have been asked to designate a lead agency to conduct an environmental review 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 review will be for the proposed new county correctional facility, located in the Village of Herkimer, Herkimer County. The disputing agencies are the Village of Herkimer (Village) and the County of Herkimer (County). This designation of the County to serve as lead agency is based on my finding that the County has the broadest governmental powers for investigation of the impacts of the proposed action by virtue of its control over all aspects of design, construction and operation of the proposed correctional facility.
Action and Site
The project is the proposal by the County to construct a new two story correctional facility consisting of approximately 130 cells and totaling approximately 93,000 square feet of area in the Village of Herkimer, Herkimer County. The current proposal is a relocation of an earlier proposed correctional facility planned in 2007 to be situated in the Town of Herkimer. That proposal was also the subject of a Commissioner's lead agency decision. I decided at that time that the County, rather than the Town of Herkimer, should serve as lead agency.1
The current preferred site is located on a parcel of land of about 26 acres on the west side of New York State Route 28,less than one-half mile north of the intersection of New York State Route 28 and East German Street in the Village. It is located approximately two miles from New York State Thruway Exit 30. The site is currently occupied by a vacant supermarket. Land use in the vicinity of the preferred site is mostly agricultural and residential. Several residences are located directly across New York State Route 28 from the site and the project is less than 2 miles from the center of the Village.
Based on information provided to this office for the proposed correctional facility, the following agencies were identified as having one or more discretionary decisions that could affect one or more components of the new proposed action:
- the 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 Village has asserted potential jurisdictions, including approval for increased water usage and sewer demand from the Village sewage system;
- the Village and County concur that the Village would need to modify the Village operated sewer and water systems to serve the preferred site;
- the New York State Commission on Corrections would be responsible for review and approval of the correctional facility configuration, operations and staffing;
- the New York State Department of Health would be responsible for review and approval of a water supply system and review and approval of food preparation facilities;
- the New York State Department of Environmental Conservation would be responsible for approval of a storm water management plan through its General Storm Water Permit for Construction; and
- the New York State Department of Transportation may need to issue permits for site access and possible water or sewer infrastructure improvements.
The Village and County are the only agencies involved in this lead agency dispute. By letter dated September 28, 2009 the County coordinated with potentially involved agencies and advised them that the County would proceed to act as lead agency. The Village objected by letter dated October 20, 2009. According to the County, the Village and County then attempted to resolve the matter themselves and were unable to reach an agreement. On December 3, 2009, the County initiated the current petition for the Commissioner to resolve this lead agency 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.
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.
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 action are primarily statewide, regional or local.
The Village is concerned that the County's anticipated use of 25,000 gallons of water per day and any increased storm water runoff will negatively impact the Village's wastewater infrastructure and treatment facility, which according to the Village is already in need of an upgrade due to its limited capacity. The sewer infrastructure and wastewater treatment facilities are solely owned, operated, administered and serviced by the Village. The Village is also concerned that the increased use of water by the proposed correctional facility could strain the existing water supply from the village's reservoir and wells. The Village argues that the proposed correctional facility will place additional stress on its budgets and tax base and that any needed infrastructure improvements will likely fall to the Village.
Strain on a community's facilities is a local issue. However, the County has identified several potential impacts that are regional in nature including those from construction and operation of the proposed new correctional facility and visual impacts to surrounding areas beyond the ambit of the Village.
As I stated in my earlier lead agency dispute decision between the County and the Town of Herkimer, nighttime lighting for a large structure such as a correctional facility, covering over a full acre of land, could create a prominent visual change from substantial distances along with the obvious effects on local residences. Traffic-related impacts from construction and operation could also extend well beyond the Village's boundaries. Impacts on water usage and stream protection can also be regional because supply and capacity questions have the potential to impact communities beyond the proposed project site and service area.
Based on the foregoing, I cannot say that the impacts of the correctional facility are predominantly local. Turning to the other criteria, I have concluded that the second criterion favors the County to serve as lead agency.
B. Second Criterion
The County, as sponsor, designer, and the agency principally responsible for construction oversight and funding of the proposed action, has the superior breadth of authority to conduct the environmental review, and, hence, the greatest ability to investigate impacts. As a result, the County also has the greatest ability to change, add, and even delete any project elements to avoid or reduce such impacts through its control of location, design and finance.
As the sponsoring agency, and because this project is intended to serve the entire County, the County is in the best position not merely to identify, but also to ensure implementation of any measures necessary to avoid or minimize potential impacts from the proposal as they may be revealed during the environmental review. The County has direct authority over site selection, construction and administration of the facility. The asserted jurisdictions of the Village (related to water, sewer and activities within the nearby local residential neighborhoods), to the extent they are not ministerial, cannot be viewed as broad-sweeping2.
Accordingly, consideration of the second criterion leads me to conclude that the County has the broadest authority to investigate impacts and implement the environmental review of this project.
C. Third Criterion
The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. As an initial matter, both the County and the Village have the capability of engaging consultants to assist their staff in managing the environmental review process. Given that both agencies possess or could obtain capacity to administer the SEQR review of this project, this third criterion does not provide any additional basis for my decision.
Given the broad authority of the County to investigate impacts and to avoid or mitigate them through its siting, design and operational decisions, I conclude that the County of Herkimer should be lead agency for the SEQR review of the proposed, 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, including the Village of Herkimer. 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. The parties, particularly the Village, have raised several environmental issues of regional and local concern. I strongly encourage the County to work closely with the Village to ensure that these environmental impacts are fully evaluated and addressed. Having been selected as lead agency for the correctional facility, the County now has the responsibility to fully identify and assess the environmental impacts of the proposed correctional facility, including but not limited to sewer and water impacts that have been identified by the Village. If the County, as lead agency, finds any impacts to be potentially significant, it then has a duty to prepare or cause an environmental impact statement to be prepared and ultimately to avoid or mitigate adverse environmental impacts revealed in the environmental impact statement process. At the same time, I encourage the Village 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.
1See Commissioner's Decisions on Lead Agency disputes, County of Herkimer and Town of Herkimer, Dec.4, 2007, http://www.dec.ny.gov/permits/40355.html. The 2007 lead agency decision was made on the basis of facts specific to that dispute, and does not dictate a particular outcome in the case at hand.
2The County asserts that the Village has no land use authority over the project based on governmental immunity. I have no authority to decide questions of governmental immunity. Further, this claim was neither disputed nor confirmed by the Village.
Alexander B. Grannis, Commissioner
Dated: April 14, 2010
Albany, New York
Distribution of Copies:
Mark K. Ainsworth, Mayor, Village of Herkimer
120 Green Street, Herkimer, NY 13350
James Wallace, Jr., Herkimer County Administrator
109 Mary Street, Suite 1310, Herkimer, NY 13350
Robert Mason, New York State Commission on Corrections, Supervisor Facilities Planning and Review
New York State Department of Health, Bureau of Public Water Supply Protection
New York State Department of Transportation, Region 2
Dominic Frank, Supervisor, Town of Herkimer
Judy Drabicki, NYS DEC Region 6, Regional Director
Larry Ambeau, NYS DEC Region 6, Regional Permit Administrator
New York State Department of Environmental Conservation, 625 Broadway, Albany
Lawrence H. Weintraub, Assistant Counsel, Office of General Counsel, Central Office
Robert L. Ewing, Division of Environmental Permits, Central Office