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Lead Agency Dispute: Town of Southampton Board of Trustees v. Planning Board v. DEC

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

PROJECT: Proposed Expansion of Jackson's Marina, Town of Southampton, Suffolk County, NY

This decision, to designate the Town of Southampton Planning Board as lead agency, is made pursuant to 6NYCRR Part 617, Subdivision 617.6(e) of the regulations implementing the State Environmental Quality Review Act (SEQR) and under the criteria for selection of lead agency set forth in paragraph 617.6(d)(1) of those regulations. My decision is based on the fact that the choices to be made regarding the proposed action are primarily of a local nature and that the Southampton Planning Board has, through the site plan review process, the greatest capability to provide a thorough environmental assessment of the entire action.

The proposed action is the expansion of Jackson's Marina in Shinnecock Bay, Town of Southampton, Suffolk County. The expansion consists of the installation of 325 feet of bulk heading and 600 feet of wave curtain, two eight foot wide docks (respectively, 200 feet and 490 feet long) and dredging of three acres of shoals, bars and mud flats to six feet below mean low water with placement of 15,000 cubic yards of resultant spoil on upland areas.

A memorandum from Harold D. Berger, Regional Director, DEC Region 1, dated March 24, 1987 stated that the involved agencies have failed to agree on lead agency for purposes of conducting the necessary environmental impact review under SEQR. Mr. Berger's memorandum requested that I designate one of the involved agencies to serve as lead agency. Agencies identified as involved are the Town of Southampton Board of Trustees, the Town of Southampton Planning Board and the New York State Department of Environmental Conservation.

In a letter dated March 24, 1987, Joseph A. Guarino, representing Jackson's Marina, also requested that I resolve the lead agency issue in order that the applications for the project presently before several local, state and federal agencies may be processed without further delay. Mr. Guarino's letter attached copies of pertinent correspondence with the agencies from which various approvals have been sought.

On April 1, 1987, letters were sent by Jerome Jensen of my staff to Richard Corwith, President of the Town of Southampton Board of Trustees, Roy Wines, Jr., Chairman of the Town of Southampton Planning Board, and Harold Berger, Director of the Region 1 office of DEC, requesting additional information. Responses were requested by close of business April 17, 1987. As of the date of this determination, responses have been received from the Board of Trustees and from Mr. Berger. No response has been received from the Southampton Town Planning Board, but their initial position has been stated in their correspondence with the applicant, as provided by Mr. Guarino.

In accord with 6NYCRR Subdivision 617.6(e), in resolving lead agency disputes, I must consider the following criteria for selection of lead agency as prescribed in paragraph 617.6(d)(1), in order of importance: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest governmental powers for investigation into potential impacts; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

The first criteria for determination of lead agency is the location and extent of potential impacts from the proposed project. All material presented shows these impacts to be primarily, if not totally, localized to the Town of Southampton, there being no evidence of either multi-municipal or regional impacts. The DEC has jurisdiction over certain activities related to the project; however, these jurisdictions are confined to portions of the project which are seaward of mean high water, and associated with activities having no statewide impacts. Although I recognize that tidal wetlands are a resource of statewide concern, the impacts of this project will be limited to the Town of Southampton.

On the other hand, the expansion of Jackson's Marina may have significant impacts upon the Town of Southampton. Such possible local impacts may include: increased traffic and noise (both on land and water); added demand for other types of services (e.g., motels and restaurants); impacts to the residential character of the area immediately to the east of the expansion; and changes in the character of the bay bottom due to the dredging of shoals and mud flats in the littoral zone. The bay bottom is alleged to be owned by the Town of Southampton and the Town Board of Trustees would authorize its use for marina purposes.

The second criteria for consideration is which agency has the broadest jurisdiction to investigate the potential impacts associated with the expansion of Jackson's Marina. Although the DEC has certain seaward jurisdictions related to Tidal Wetlands, Protection of Waters and Water Quality permits, DEC has little, if any, responsibilities related to the upland aspects of the project. These potential impacts can best be assessed by an agency with jurisdiction over the land use and development plans for the Town.

The Board of Trustees acknowledges its jurisdiction over the affected portion of Shinnecock Bay, but maintains it does not have sufficient expertise to investigate the environmental impacts upon the bay or upland area. However, the Board of Trustees is the chief governing body for the Town and can call upon the full resources of the Town to carry out any required investigations. Among these resources would be the Town Planning Board and staff, which among its other responsibilities must approve a site plan for the expansion of Jackson's Marina..The third consideration in selecting a lead agency is capability to provide a thorough environmental assessment. In this instance, the site plan review process carried out by the Town Planning Board is best able to consider all possible aspects of the project. An environmental review under SEQR, carried out in conjunction with the site plan review, would be the best mechanism to ensure that all environmental issues of significance are considered. The DEC Region 1 staff will provide input with regard to their jurisdictional areas, but the overall review of both upland and seaward areas is best handled by the Town Planning Board.

It should be noted that in their correspondence with DEC Region 1 on January 14, 1987, the Town of Southampton Planning Board declined at that time to assume lead agency status. However, they also expressed a concern with the expansion of use because "...the applicant has not completed the previous expansion and has not fully complied with our conditions of approval." The Planning Board, by assumption of the lead agency role for this project, is in the best position to address the whole action including any past deficiencies.

Based on a careful consideration of all facts presented, I find that due to the local nature of the possible significant impacts, the more comprehensive capacity to provide a thorough investigation of all aspects of such impacts, and the need to ensure that all past jurisdictional conditions are met, the Southampton Town Planning Board is the agency best suited to act as lead agency for the proposed expansion of Jackson's Marina.

This decision does not in any manner limit or minimize the responsibility of all involved agencies to review the entire action. Each involved agency has the responsibility to assist the Southampton Town Planning Board in the completion of the environmental review process. If a draft environmental impact statement is required, both agencies should actively participate in the scoping and review of the document.

Henry G. Williams, Commissioner
Dated: May 5, 1987
Albany, New York

Distribution of Copies

  • R. Corwith, President, Board of Trustees, Town of Southampton
    R. Wines, Jr., Chairman, Southampton Planning Board
    B.L. Coughlan, Deputy Town Attorney, Town of Southampton
    J.A. Guarino, Esq., MVG& D
    G. Jackson, President, Jackson's Marina
    S.A. Schumach, COE, NY
    K. Cross, DOS

New York State Department of Environmental Conservation:

  • L. Marsh
    J. Corr
    L. Concra
    M. Gerstman
    G. Bowers
    H. Berger
    R. Greene
    J. Jensen

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