Lead Agency Dispute: NYCDEP v. DEC v. Town of Hunter
New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law
PROJECT: Conversion of an existing office building to a nine unit, single-bedroom townhouse complex, Town of Hunter, Greene County
- New York City Department of Environmental Protection,
Bureau of Water Supply
New York State Department of Environmental Conservation,
Region 4 (DEC)
Town of Hunter Planning Board
This decision to designate the Town of Hunter Planning Board as the lead agency for the conduct of an environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law and 6NYCRR 617. The basis for my decision is that the impacts of the proposed action are minimal, primarily of local concern and not an integral component of Hunter Highland Phases III and IV.
The lead agency dispute involves the proposed conversion of an existing office building to a nine- unit, single-bedroom townhouse complex in the Phase I/II Hunter Highlands development, Town of Hunter, Greene County. The site is served by existing water and sewage treatment facilities. However, the proposed change in use will result in an increase of approximately 684 gallons per day of sewage. Sufficient sewer and water capacity exists due to the fact that a 70-unit motel and restaurant that were originally part of Phases I and II of the Hunter Highlands development have never been constructed.
The Town of Hunter Planning Board must give subdivision approval to the proposed conversion and has indicated its desire to serve as lead agency. The DEC, which may have to issue a modification to the existing State Pollutant Discharge Elimination Systems (SPDES) permit for discharge into Schoharie Creek, has also indicated its desire to serve as lead agency. DEC has been established, by agreement, as the lead agency for the environmental review of Phases III and IV of the Hunter Highlands development and seeks to include this project in the review of that action. The New York City Department of Environmental Protection, Bureau of Water Supply supports DEC's position in this petition..In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in 6NYCRR Paragraph 617.6(e)(5). These are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest powers for investigation of potential impacts; and (3) which agency has the greatest ability to provide a thorough environmental assessment of the proposed action.
The project involves the conversion of an existing structure to a new use. The anticipated impacts from this conversion will be confined to the interior of the structure. The primary concerns identified are the change in use and impacts on surrounding land uses. It is clear that these impacts will be limited to the Town of Hunter and that they are not of sufficient magnitude to warrant regional or statewide concern.
The remaining two criteria also favor the Town. The Town of Hunter Planning Board which must issue subdivision approval to this action has much broader jurisdiction to deal with the land use issues than does DEC. The Planning Board also has access to consultants to assist it in the review and assessment of these local concerns.
The DEC has indicated that the site-specific impacts of the proposed conversion, as well as the impact on the sewer and water systems that will serve the site, are not significant. However, DEC's primary concern is that this project may limit or impair the Department's authority as lead agency with respect to the review of Hunter Highlands Phases III and IV.
The facts of this action do not warrant its inclusion as part of the review of the subsequent phases due to its independent utility, nor will it in any way intrude on the DEC's authority with respect to Phases III and IV. The provisions of the SEQR process require that DEC, in its review of Phases III and IV, identify and evaluate all reasonable alternatives and mitigation measures necessary to eliminate or avoid identified impacts. This may include alternatives and mitigation that involve revisiting the portions of Phases I and II that have, to date, not been completed.
This decision does not, in any manner, change or limit the jurisdictions of any of the involved agencies with respect to the actions that are before them.
Thomas C. Jorling Commissioner
Dated: September 13, 1990
Albany, New York
Distribution of Copies:
- Charles P. Memhard, Chairman, Town of Hunter Planning Board
William Clarke, Region 4, Dept. of Environmental Conservation
George Mekenian, NYC Dept. of Environmental Protection
Greg Lubow, Attorney, Hunter Highlands
New York State Department of Environmental Conservation:
- T. Jorling
J. Magee (Region 4)
D. Stout (Region 4)