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Lead Agency Dispute: Steuben County IDA 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 Construction and Operation of the WindFarm Prattsburgh, LLC, Wind Electric Generating Facility, Town of Prattsburgh and Italy, Steuben and Yates County

DISPUTING AGENCIES: Steuben County Industrial Development Agency and New York State Department of Environmental Conservation

This decision to designate the Steuben County Industrial Development Agency (SCIDA) as lead agency for the conduct of the environmental review of the proposed WindFarm Prattsburgh, LLC, wind electric generating facility under the New York (NY) State Environmental Quality Review Act (SEQR) is made pursuant to Article 8 of the New York State (NYS) Environmental Conservation Law (ECL) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), Part 617. This decision is based on my finding that the SCIDA is the most appropriate lead agency given the primarily local potential impacts of the proposed project and, further, that SCIDA is the only agency with clear and certain jurisdiction over the proposed action.

The proposed action is the construction and operation of between 25 and 50 wind turbines of 1.5 to 2 megawatt (MW) capacity each, with total project capacity not to exceed 75 MW. The project would be located generally west and north of the hamlet of Prattsburgh in the Towns of Prattsburgh and Italy, Steuben and Yates County, in hilly terrain with mixed agricultural and forest land uses containing scattered residences. The majority of the proposed turbine locations are west and south of New York State (NYS) Route 53 (Rt. 53), although one turbine cluster is proposed for the northerly side of Rt. 53 near the Prattsburgh-Italy town line . As proposed, approximately 80 per cent of the project would be located in the Town of Prattsburgh, Steuben County.

The project sponsor requested that this designation of lead agency be made to resolve the question of re-establishment of lead agency while the impact review process is ongoing. Despite a reasonably broad initial identification of "potentially involved" agencies, there are actually relatively few agencies with jurisdiction over the project as now proposed:

  • the original lead agency, the NYS Energy Research and Development Authority (NYSERDA), is no longer involved with the project because WindFarm Prattsburgh, LLC's application for grant funding was discontinued, and NYSERDA has no other regulatory or supporting involvement with the project;
  • the NYS Public Service Commission (PSC) determined that it has no jurisdiction over the project as proposed;
  • the Town of Prattsburgh and the Town of Italy have no local land use controls or ordinances, nor do wind turbines require building permits, so no local approvals are required for the project as proposed;
  • Yates County Industrial Development Agency has not been requested to develop a PILOT;
  • Steuben County Industrial Development Agency (SCIDA) is involved by virtue of its role in negotiating, authorizing and implementing a proposed Payment in Lieu of Taxes (PILOT) agreement for the project;
  • the NYS Department of Environmental Conservation (DEC) was unable to determine with certainty at the time of initial lead agency coordination whether it would actually have jurisdiction based on construction in or near a regulated freshwater wetland, because turbine and support facility locations were not yet precisely identified. Based on the most recent proposed locations and sponsor statements, the sponsor is attempting to avoid working in state-regulated freshwater wetlands and adjacent areas, however, a Water Quality Certification (WQC) from DEC under the federal Clean Water Act may be necessary based on potential construction involving federally-regulated wetlands; final confirmation of that jurisdiction cannot be made until actual design documents are submitted. Finally, while NY State Pollutant Discharge Elimination System (SPDES) Stormwater Phase II/Construction permit requirements will apply to the project, it is highly probable (based on sponsor statements and industry practice to date) that the project will qualify for the general permit ("stormwater GP"), eliminating DEC as an involved agency based on the stormwater jurisdiction.

Following the elimination of NYSERDA as lead agency when its jurisdiction failed, no other agency has expressed any desire to take over as lead agency. Further, SCIDA, the one agency with clear and confirmed jurisdiction, has actively expressed reluctance to serve as lead agency. This prompted the sponsor's request that the Commissioner designate a lead agency.

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). 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.

For a wind electric generation facility, there are "typical impacts" associated with both construction and operation of the project. Construction-related impacts, like traffic, land clearing, equipment noise, and the like, are inevitable and almost entirely local. Operational impacts could be both local and regional-to-statewide. In this case, visual impacts of the towers and rotor noise impacts are likely impacts, and because of terrain of the project site and general lack of publicly-accessible vantage points, are primarily local concerns. Potential effects on bats and birds were identified by DEC as an issue warranting further investigation to determine impact potential, although no specific sensitive populations or resources were initially identified. DEC proposed study specifications during scoping for an environmental impact statement (EIS), and has offered to continue to provide technical assistance during the review of that EIS, regardless of what agency is designated as lead agency. Thus, the majority of the impacts identified as likely are local impacts, with no confirmed probable impacts of either state or regional significance. Accordingly, under the first criterion, the local agency, SCIDA, is the most appropriate lead agency for the environmental review of this proposal.

Further, under the second criterion, breadth of authority, I can make distinctions between the disputing agencies. The SCIDA, through its essential participation in development of the PILOT terms, possesses actual, confirmed jurisdiction as to the proposed project. The only other agency with even potential jurisdiction is DEC. Whether DEC will have site-specific jurisdiction under either its freshwater wetland or WQC authority is dependent on whether the sponsor is able to fully avoid all wetland areas, which it has stated that it is attempting; thus, further design changes could eliminate DEC individual permit jurisdictions altogether. While the stormwater jurisdiction remains, DEC would not be a SEQR involved agency based on just stormwater jurisdiction as long as the project qualifies for the stormwater GP. Further, that stormwater GP was itself subject to review before it was issued. Thus, this criterion clearly favors SCIDA, as it clearly holds actual authority over the project such that it could require construction or operational conditions to avoid or minimize the full range of impacts. Additionally, the process of the review would be best served by a lead agency with confirmed jurisdiction who will be able to see the EIS and comment process through to the completion of a final EIS.

Since I can reach a decision based on the first two criteria, I am not compelled to provide a detailed discussion of the third criterion, capability for most thorough environmental assessment. I do note, however, that SCIDA has access to design/engineering and legal consultants with experience in environmental evaluations, so this criterion raises no concerns as to the capability of SCIDA to serve as lead agency. Further, SCIDA is already serving as the lead agency for the review of another wind generation facility.

For the foregoing reasons and based on the facts presented, I conclude that SCIDA should be lead agency for the conduct of the environmental review of the proposed WindFarm Prattsburgh LLC facility. This decision in no way limits the jurisdiction or responsibilities of the other involved and interested agencies. I specifically encourage the SCIDA to seek and use the expertise of DEC as well as the other involved and, especially, interested agencies in identifying and evaluating potential impacts and in developing viable options to avoid or mitigate any unacceptable impacts.

/s/
Denise M. Sheehan, Commissioner
Dated: January 17, 2006
Albany, New York

Distribution of Copies

Disputing Agencies:

  • SCIDA
  • DEC, attn: Jack Nasca

New York State Department of Environmental Conservation:

  • Sean Hanna, Regional Director, DEC Region 8
  • Peter Lent, Regional Permit Administrator, Region 8
  • Michael Naughton, Esq., Legal Affairs, Albany
  • Betty Ann Hughes, Environmental Permits, Albany

Additional Copies - Involved/ Interested Agencies:

  • PSC
  • Yates County IDA
  • Supervisor, Town of Prattsburgh
  • Supervisor, Town of Italy

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