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Lead Agency Dispute: Town of Henrietta v. DEC

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

PROJECT: "The Market Place" Regional Shopping Center Town of Henrietta, Monroe County, New York

1. Pursuant to the provisions of 6 NYCRR Part 617.5(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 5 business days designate a lead agency on the basis of the criteria contained in 6 NYCRR Part 617.5(c).

2. On August 9, 1978, a meeting of all agencies involved in approving the instant project, "The Market Place" regional shopping center, was convened for the purpose of reaching agreement on which agency should be the lead agency for purposes of SEQR. Only the town of Henrietta (the "Town") and the Region 8 office of the New York State Department of Environmental conservation (the "Department"), indicated an interest in lead agency status. In its petition, the Town asserts that there are numerous approvals required in connection with the instant project. The Department has determined that an indirect source of air pollution permit and a freshwater wetlands permit under Environmental Conservation Law Articles 19 and 24, respectively, will be required for the project. No agreement was reached between those involved on lead agency status.

3. On August 17, I received a statement of justification for lead agency status from the Region 8 staff of the Department. On August 21, 1978, I received a statement of justification for lead agency status from the Supervisor of the town of Henrietta. On August 23, 2978, I met with the Supervisor of the Town of Henrietta to hear further reasons as to why the Town should be designated lead agency.

4. Based upon a careful consideration of the facts in this case, comments received and the criteria for lead agency contained in 6 NYCRR Part 671.5(c), I hereby designate the New York State Department of Environmental Conservation as lead agency for the purposes of SEQR in connection with the project for the following reasons:

  • a. Statements of Town officials and past actions taken in connection with the project suggest that prior to my June 13 decision requiring the preparation of an environmental impact statement on the project, little more in the way of meaningful analysis and review in a single coordinated fashion of the range and interrelation of environmental effects of the project by the Town was contemplated. Indeed, to date, the Town's review of the instant project has progressed significantly towards completion while the Department has not yet even begun its review of the project for air pollution and freshwater wetlands permit requirements.
  • b. By its very nature, a large regional shopping center involves a complex mixture of short and long-term, primary and secondary effects. Clearly, many of the short-term and primary effects will occur at the project site within the Town, and the Town's comments and suggestions in this regard will be greatly appreciated and afforded significant weight. The long-term and secondary effects of the project that will occur, however, will extend considerably beyond the political boundaries of the Town.
  • c. Among the principal primary effects of the project that warrant consideration in the environmental impact statement are air pollution, transportation and traffic, flooding potential, storm water runoff and altered drainage conditions, and wetlands. An analysis of those effects and their interrelationship requires a high level of environmental analysis expertise and experience. The Town has admitted that it lacks the staff with which to address these issues and has stated that it would, instead, rely upon Department staff for these purposes. I cannot, however, be in, a position of providing staff support for other governmental entities and, in addition, no mechanism exists for resolving conflicts which might arise between the Department staff and the Town. Clearly, SEQR contemplates and requires that there be but one lead agency in fact as well as name. Department staff posses a greater capability for thoroughly examining these effects through the EIS process than does the Town.
  • d. The important secondary effects that must be examined through the SEQR process are in the nature of induced impacts: changes in population distribution, associated investments and altered patterns of social and economic activity, changes in existing community and neighborhood character both in Henrietta and as far away as the City of Rochester. Clearly, effects of this nature that will be associated with the project are of more than principally local importance. Department personnel posses a better capability to address these larger issues in an objective fashion than does the Town of Henrietta.
  • e. A multi-disciplinary approach to the consideration of the mixture of effects of the project can be provided by the regional personnel, training and experience that cannot be matched by the Town.
  • f. The Department possess broader governmental powers for investigation into the impacts of the project than does the Town of Henrietta by virtue of the significant environmental permits that must be obtained from the Department and based on the fact that the Town of Henrietta has already granted at least some of its principal discretionary permits relating to the project.
  • g. The Town has contended that if it is not designated lead agency, it will have lost its powers to shape and control development within its boundaries. this concern is unfounded since major decisions as to the features of the project remain under Town control as a result of its regulatory requirements which are in no way superseded by the environmental review process.

Peter A.A. Berle Commissioner
Dated: August 25, 1978
Albany, New York

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