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Lead Agency Dispute: Wappinger Town Board v. DEC

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

PROJECT: Town of Wappinger Wastewater Treatment Facilities

This decision to designate, as lead agency, the Town of Wappinger is made pursuant to Subdivision 617.6(e) of 6NYCRR Part 617, regulations implementing the State Environmental Quality Review Act (SEQR), and under the criteria for selection of lead agency as set forth in paragraph 617.6(d)(1) of the same regulations. My decision is based on the fact that the choices to be made regarding the proposed action are primarily of a local nature. The proposed action is the provision of additional wastewater treatment facilities for the Town of Wappinger.

On January 26, 1987, the Wappinger Town Board circulated a notice seeking lead agency status on the analysis of three major options for providing sewerage services within the Town. These options are: (1) to construct a new sewage treatment plant at the site of an inadequate existing plant, in order to serve the Town's present sewer improvement area; (2) to develop a larger new plant at a new site within the Town, with provision for a capacity greater than needed for the present improvement area; and (3) to contract with the Tri-Municipal Sewer Commission for construction of an addition to the Tri-Municipal treatment plant to serve the needs of the Town.

On February 23, 1987, I received correspondence from Leif W. Jensen, Chairman of the Tri-Municipal Sewer Commission, Wappingers Falls, New York, indicating that the Sewer Commission did not consent to the Town serving as lead agency. The correspondence further indicated the Sewer Commission's desire to have the New York State Department of Environmental Conservation (DEC) undertake the lead agency role and presented arguments to substantiate this position. The Region 3 office of the DEC has not objected to the Town of Wappinger acting as lead agency. On March 2, 1987, I received a letter from Jennifer L. VanTuyl, Attorney to the Town of Wappinger, which set forth arguments from the Town in support of their position.

No other involved agency (see attached list) has expressed objection to the Town of Wappinger's assumption of lead agency for this action. However, on February 26, my office received a letter from Stephen J. Wing, County Attorney, indicating that the County of Dutchess would take no position on the designation of a lead agency. The letter also provided an opinion by the County, noted below, about the nature of the proposed action..My decision is based on the criteria for selection of lead agency provided in subparagraphs 617.6(d)(1)(I), (ii) and (iii) of Part 617. These criteria call for consideration of the location of the anticipated impacts, the breadth of the applicable jurisdiction, and the capability of the involved agencies to provide a thorough environmental assessment. Section 617.6 requires that these be considered in order of their importance. In making my decision, I have considered each involved agency; in particular, the Department of Environmental Conservation, the County of Dutchess, the Tri-Municipal Sewer Commission and the Town of Wappinger.

The first criterion relates to whether the impacts of the actions being considered are primarily of statewide, regional or local significance. The action in question is the provision of sewerage facilities to serve the Town of Wappinger. Among the alternatives to be considered, two would place the entire action within the Town and the third could involve adjacent municipalities. In all three cases, impacts would have little, if any, significant statewide effect, a factor strongly arguing against a state agency taking lead.

The third alternative which involves adjacent municipalities may arguably have some regional effects. The Tri-Municipal Sewer Commission, in its submittal noted that DEC "...is intimately familiar with the conceptual engineering and feasibility planning for the Tri-Municipal project and the Wappinger Creek Drainage Basin." However, the Tri-Municipal project involves only one of the proposed alternatives and knowledge of the entire basin is not necessarily a rationale for superseding an agency which has an equal, if not greater, understanding of the immediate area to be served by this action.

The provision of sewerage facilities within a single town is primarily a matter of sub-regional concern. This was recognized in Dutchess County Attorney Wing's letter which stated that in the County's opinion, the anticipated action "...is of sub-regional significance, and any designation of lead agency status should take that point into account." The letter further notes that Policy 6.6 of the adopted Dutchess County Master Plan supports inter-municipal cooperation in managing wastewater treatment problems within the Lower Wappinger and Casperkill Creek drainage basin.

The second criterion for consideration in selection of lead agency is which agency has the broadest governmental powers for investigation into the impacts of the proposed action. While DEC has broad powers related to state environmental matters and must, in fact, provide certain approvals related to the development and operation of sewerage treatment facilities, there is a broader array of local decisions necessary before an action can be taken to develop the facilities pertinent to this lead agency determination. The two agencies which reflect this broader jurisdiction to assess the impacts of such decisions are the Town of Wappinger and the Tri-Municipal Sewer Commission. However, only one of the alternatives involves the Sewer Commission. Therefore, the agency with the greatest opportunity for investigating the impacts of all three alternatives is the Town of Wappinger.

The third criterion for selection of lead agency is which agency has the greatest opportunity for a thorough environmental assessment of the proposed action. Each involved agency has adequate staff resources to thoroughly assess the environmental effects of the proposed action, or has the capacity to secure appropriate consulting services.

Based on a careful consideration of all the facts presented, I find that due to the local nature of the alternatives to be considered, the Town's powers to thoroughly investigate the alternative actions at a local level and its capability to do so, the Town of Wappinger is the most appropriate body to act as lead agency for the preparation of an environmental impact statement (EIS) regarding the development of additional sewerage treatment facilities for the Town.

This lead agency designation of the Town of Wappinger should not be taken as an indication that expansion of the Tri-Municipal Sewer Commission's newly developed plant will not be considered a serious alternative in the Town's impact statement and subsequent studies. In their correspondence to me, the Sewer Commission and Dutchess County have set forth significant concerns for consideration during the course of study of alternatives. In addition, DEC has been involved in earlier wastewater treatment studies in the Wappingers Creek basin and has a serious commitment to see that the major elements of the basin-wide plan are carried out as expeditiously as possible. Therefore, the Town of Wappinger must expect that the Sewer Commission, Dutchess County and DEC will be making substantive contributions into the scoping and review of the draft EIS.

This decision does not in any manner limit or minimize the responsibility of DEC, the Sewer Commission, or any other involved agency to review the entire action.

/s/
Henry G. Williams Commissioner
Dated: March 31, 1987
Albany, New York

Distribution of Copies:

  • I. M. Paino, Supervisor, Town of Wappinger
    J. Van Tuyl, Attorney, Town of Wappinger
    L. W. Jensen, Chairman, Tri-Municipal Sewer Commission
    S. J. Wing, County Attorney, Dutchess Co.
    Involved Agencies (see attached list)
    C. Sondheimer, Scenic Hudson

New York State Department of Environmental Conservation:

  • L. Marsh
    J. Corr
    L. Concra
    M. Gerstman
    P. Keller
    J. Jensen
    R. Manna
    G. Bowers

Additional Copies - Involved/ Interested Agencies:

  • Town of Wappinger Town Board
    Town Hall, 20 Middlebush Road
    P.O. Box 324
    Wappingers Falls, NY 12590

    Town of Wappinger Planning Board
    Town Hall, 20 Middlebush Road
    P.O. Box 324
    Wappingers Falls, NY 12590

    Dutchess County Planning Department
    47 Cannon Street
    Poughkeepsie, N.Y. 12601

    Dutchess County Department of Health
    22 Market Street
    Poughkeepsie, N.Y. 12601

    Dutchess County Dept. of Public Works
    38 Dutchess Turnpike
    Poughkeepsie, N.Y. 12603

    Commissioner
    N.Y.S. Department of Environmental Conservation
    50 Wolf Road
    Albany, N.Y. 12233

    N.Y.S. Department of Environmental Conservation
    Region 3, Attn: Mr. Ralph Manna
    21 South Putt Corners Road
    New Paltz, N.Y. 12561

    N.Y.S. Department of Environmental Conservation
    Attn: Mr. Joseph Marcogliese
    202 Mamaroneck Avenue
    White Plains, N.Y. 10601

    N.Y.S. Department of Transportation
    Region 8
    4 Burnett Blvd.
    Poughkeepsie, N.Y. 12603

    N.Y.S. Department of Audit and Control
    Attn: Municipal Affairs
    Alfred E. Smith Office Bldg.
    Albany, N.Y. 12236

    U.S. Army Corps. of Engineers
    Attn. Col. Fletcher Griffis
    District Engineer
    26 Federal Plaza
    New York, N.Y. 10278

    Tri-Municipal Sewer Commission
    Attn: Leif W. Jensen, Chairman
    P.O. Box 859
    Wappingers Falls, N.Y. 12590

    Tri-Municipal Sewer Commission
    Attn: Matt Rudikoff, Project Director
    Rudikoff Associates
    328 Main Mall
    Poughkeepsie, N.Y. 12601

    Mr. Orin Lehman, Commissioner
    N.Y.S. Office of Parks, Recreation and Historical Preservation
    Empire State Plaza
    Agency Building No. 1
    Albany, N.Y. 12238

    Uluss Thompson, Regional Director
    Taconic Region
    N.Y.S. Office of Parks, Recreation and Historical Preservation
    Staatsburg, N.Y. 12580

    N.Y.S. Coastal Management Program
    Attn: William Barton
    Consistency Bureau
    162 Washington Avenue
    Albany, N.Y. 12231

    Environmental Protection Agency
    Attn: Christopher J. Daggett, Regional Director
    Region 2 Office
    26 Federal Plaza
    New York, N.Y. 10278


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