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Lead Agency Dispute: Town of Rotterdam 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 Westview Mall (Wilmorite, Inc.) Rotterdam, New York

1. Pursuant to the provisions of 6 NYCRR Part 617.6(e), when agencies involved in carrying out or approving an action that is subject to Article 8 of the Environmental Conservation Law ("SEQR") are unable to agree on which agency shall be the lead agency, any involved agency may submit the question to the Commissioner of Environmental Conservation, who shall, within 12 business days, designate a lead agency on the basis of the criteria contained in 6 NYCRR Part 617.6(d).

2. On July 29, 1980, I received a "Petition" from Kenneth Dolan, Chairman of the Rotterdam Planning Commission, on behalf of the Town of Rotterdam (the "Town") requesting the designation of lead agency for the environmental review of the proposed Westview Mall to be located in the Town of Rotterdam. The submission of this Petition followed meetings among the involved agencies, DEC Region 4, the Department of Transportation and the Town, and the Town's receipt of a letter from DEC Region 4 dated July 28, 1980 indicating that DEC should serve as lead agency.

3. I have received letters from the Cities of Schenectady and Amsterdam and the Town of Niskayuna expressing their opinion that DEC should be designated lead agency. I have also received several other letters from residents of Rotterdam and Schenectady opposing the designation of the Town as lead agency and requesting the designation of DEC as lead agency. Lastly, DEC Region 4 has submitted a letter in support of DEC's designation as lead agency.

4. The Petition submitted by the Town raises several points not germane to a decision on the designation of lead agency but nevertheless should be addressed. In paragraphs 19 and 20 of the Petition, the Town alleges inconsistencies between DEC's actions in Region 4 and Region 8 in the decisions to seek lead agency status. The decision to seek lead agency status in a given region is made by the DEC regional office responsible for the issuance of permits or the granting of approvals as provided in the Environmental Conservation Law. Whether DEC in a given region seeks the lead agency role depends upon the factual circumstances surrounding a specific project, including among other things: the number of DEC permits required by the project; the likelihood and degree of any potential regional adverse environmental impact; the willingness and capability of other involved agencies to perform the lead agency functions; the desire to encourage local agencies to assume SEQR responsibilities; and the DEC regional office's existing workload and consequent ability to perform the lead agency functions. Any interpretation of inconsistency between DEC's regional offices as described in the Petition stems from a lack of understanding of the differing factual circumstances confronting the two DEC regions for the referenced projects. No dispute over lead agency surfaced in the Expressway Mall or Webster Mall projects, unlike the project before me. Furthermore, DEC had a limited jurisdictional involvement in each project. A decision on the lead agency status for the proposed Westview Mall will be made in accordance with the criteria specified in 6 NYCRR 617.6 which are as follows:

  • (i) 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 shall be the lead agency;
  • (ii) which agency has the broadest governmental powers for investigation into the impacts of the proposed action; and
  • (iii) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

5. The Petition alleges that any anticipated impacts stemming from the project are primarily local in character and thus mandate designation of the Town as lead agency. The Town acknowledges the potential economic impact on the regional retail market from which the mall will draw its customers. Letters received by me indicate that in addition to the potential regional economic impacts, a significant impact on the Schenectady aquifer is possible. This aquifer serves as a water supply for the City of Schenectady and parts of the Town of Niskayuna, in addition to the Town of Rotterdam. The aquifer is a recognized regional water source. Other regional impacts identified include: traffic congestion beyond Rotterdam's borders with associated adverse air quality impacts and secondary potential impacts of growth inducement to develop adjoining land with possible cumulative adverse air and water quality impacts.

6. The second criterion specified by the regulations is the breadth of governmental powers for investigation of the environmental impacts of a project The test expressed by the Town in paragraph 13 of the Petition is not an appropriate one for determining the extent of governmental powers. The scope of the Town's "police powers" are limited in their exercise to the borders of the Town. The Town's approvals all relate to site-specific issues that are necessarily limited by the scope of the Town's jurisdictional concerns. DEC, on the other hand, with five separate permits (freshwater wetlands, stream alteration, stream impoundment, SPDES and indirect air source) has extensive statutory authority to investigate all environmental impacts of the project, including those that extend beyond the borders of the site or of the Town. Moreover, ECL §3-0301(l)(b) provides separate DEC authority for assessing the cumulative impacts of a project for which a DEC permit is required.

7. The last of the criteria listed in the regulations addresses the capability of the involved agency to perform a thorough environmental review. There is little question that DEC possesses the requisite capabilities. Its full time staff, technical expertise and experience in environmental matters is extensive. The Town claims that it has superior capabilities to perform a thorough environmental review because of its previous involvement with applications to develop a shopping mall near the present site and its heightened sensitivity to the aquifer issue. In considering the Town's claim, it appears that much of its staff is made up of citizen volunteers who work part-time and cannot be expected to have the broad technical competence of the DEC staff. Letters from local citizens evidence concern over the Town's capability but, more importantly, concern over the Town's willingness to perform a thorough and unbiased environmental assessment. Similarly, the City of Schenectady raises objections over the capacity of the Town's part-time personnel to perform the requisite environmental reviews for a project which may impact upon Schenectady's water supply. These concerns argue for the selection of a lead agency that can assure all citizens of an independent environmental review.

8. Based upon a careful consideration of the facts in this case, the Petition, the comments by various parties, and the criteria for lead agency contained in 6 NYCRR 617.6(d), I hereby designate the Department of Environmental Conservation as lead agency for the purpose of SEQR in connection with this project.

The designation of the Department as lead agency does not mean that the Town, an involved agency under SEQR, will not or should not participate actively in the SEQR review process. The past experience of the Town with the aquifer issue requires that it play an active role in commenting on any Draft EIS to be submitted by the applicant or any hearing held on the project. The Department is firmly committed to encouraging local agencies to participate in the SEQR process and, where appropriate, designating the local agency as lead agency in the event of disputes.

Lastly, the SEQR regulations, 617.4(b) and 617.8(d)(2), mandate that involved agencies coordinate their review processes and consolidate hearings, to the extent practicable to avoid delays and duplication of efforts. It is the policy of this Department to encourage such efforts to minimize both the inefficient use of DEC staff resources and waste of resources of the applicant and interested citizens. To this end, I am directing the DEC staff assigned to this project take all necessary steps to encourage early and active involvement of the Town of Rotterdam, DOT and interested citizens in reviewing the project and to seek to identify the significant issues of concern stemming from the project so that a fair and efficient environmental review can be achieved. Furthermore, should a hearing on the project be called, efforts should be made to consolidate all required hearings and to focus attention on the relevant substantive and significant issues in contention.

Robert F. Flacke Commissioner
Dated: August 13, 1980
Albany, New York

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