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Lead Agency Dispute: Oyster Bay Zoning Board v. Department of Planning and Development v. LI Power Authority

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

PROJECT: Proposed Glenwood Landing Energy Center Project in the Town of Oyster Bay, Nassau County.

DISPUTING AGENCIES: Town of Oyster Bay Zoning Board of Appeals, Town of Oyster Bay Department of Planning and Development and the Long Island Power Authority

This decision to designate the Long Island Power Authority (LIPA) as lead agency for the conduct of the environmental review under the State Environmental Quality Review Act (SEQRA) is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 617. This decision is based on my finding that the potential impacts from the proposed Glenwood Landing facility, which is one of a series of five electric generating facilities to be constructed at various locations on Long Island, are of regional importance and require an agency with a regional perspective to lead the environmental review.

The specific project that is the subject of this dispute is the construction of an electric generating facility in the Hamlet of Glenwood Landing in the Town of Oyster Bay, Nassau County. The project will include the construction and operation of two new simple cycle natural gas turbine combustion generators with a maximum net output limited to 79.9 MW on a 2.9 acre site. The site previously served as the location for a propane peak shaving facility. The Glenwood site is one of five electric generating sites (Glenwood Landing, Port Jefferson, Edgewood, Shoreham & Bethpage) that are being proposed to address the energy needs of Long Island. LIPA will be acquiring the sites, leasing them to individual sponsors and executing purchase power agreements for each facility.

The Town of Oyster Bay believes that in order for the facility to be constructed and operated it will require a special use permit and an area variance from the Town of Oyster Bay Zoning Board of Appeals (ZBA) and a site plan approval from the Town of Oyster Bay Board of Planning and Development. LIPA has questioned the jurisdiction of the Town of Oyster Bay. LIPA believes that the Town lacks any discretionary jurisdiction over the proposed Glenwood Landing project and therefore it is not an involved agency as that term is defined in 6 NYCRR 617.2(s). In practice, an agency is treated as an involved agency unless it can be shown with reasonable certainty that it has no jurisdiction in the particular action. In this proceeding it can be reasonably argued that the Town of Oyster Bay Zoning Board of Appeals may have a jurisdictional role in this action. Therefore, I choose to review the project and resolve the petition on its merits.

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: (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.

The first criterion relates to whether the anticipated impacts are primarily of statewide, regional or local significance. The potential impacts from this facility are both local and regional in nature. The Town of Oyster Bay has identified the potential for impacts to air, water, aesthetics, traffic and noise from construction and operation of the Glenwood Landing facility. It is clear that there are impacts from the construction and operation of this facility that are local. However, the other four facilities which are a part of this same proposal will similarly impact four other communities and, taken together, have potential regional impacts to consider, particularly regarding regional air quality. Given the regional aspect of the entire proposal, along with the need for additional peak electric generating capacity on Long Island, I find that the impacts are primarily of regional significance and that an agency with regional jurisdiction must serve as the lead agency for this project.

The next criterion addresses the breadth of jurisdiction. Consideration of this criterion also reveals a distinction between the disputing agencies. If the ZBA were the lead agency, it would be capable of identifying the potential environmental impacts and appropriate mitigation associated with the construction of all five facilities but since its jurisdiction is limited to the land area within its political jurisdiction it would be unable to insure that the mitigation measures to avoid or reduce those impacts would be carried out. However, LIPA has the broad authority to not only identify impacts associated with the construction and operation of the five facilities but it would also have the authority to ensure that the necessary mitigation was carried out. Therefore, I find that the jurisdiction of LIPA provides broader authority to review and provide mitigation for the anticipated impacts from the entire proposal.

The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. Both LIPA and the Town of Oyster Bay possess the necessary staff or the ability to obtain the assistance of consultants to undertake an adequate environmental review of the proposed action if the review was restricted to the Glenwood Landing site. However, given that the proposal consists of the construction and operation of facilities at 5 sites at various locations in Nassau and Suffolk County it is clear that LIPA as an agency with a regional perspective is best able to provide the comprehensive environmental review that this type of a proposal requires.

I conclude, based on the facts presented, that LIPA should be lead agency for the conduct of the environmental review for the proposed Glenwood Landing Energy Center project due to the regional nature of the impacts and LIPA's broad authority over the larger, multi-project initiative.

This decision is no way limits the jurisdiction or responsibility of the Town of Oyster Bay. I urge the Town to actively participate in the environmental review so that the record developed by LIPA will adequately satisfy their needs if approvals are needed from the Town.

/s/
Erin M. Crotty, Commissioner
Dated: November 13, 2001
Albany, New York

Disputing Agencies/Applicant:

  • Richard Kessel, Chairman, Long Island Power Authority
    Stanley Klimberg, Esq., Long Island Power Authority
    Patricia Baranello, Executive Secretary, Town of Oyster Bay ZBA
    Patricia McGuire, Commissioner, Town of Oyster Bay dept of Planning & Development
    Jane Hand Deixler, Secretary to the Commissioner, Public Service Commission
    Honorable Randy Daniels, Secretary of State
    Howard Blankman, Chairman, Nassau County Planning Commission
    Lenore Kuwik, Division of Environmental Permits, NYS DEC

New York State Department of Environmental Conservation:

  • Michael Naughton, Counsel, Division of Legal Affairs
    Jack Nasca, Division of Environmental Permits

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