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VILLAGE’S AGREEMENT TO SELL ONE MILLION GALLONS OF WATER PER DAY FOR TRANSPORT TO PENNSYLVANIA WAS A TYPE I ACTION REQUIRING SEQRA REVIEW.

Upon remittitur after reversal by the Court of Appeals, the Fourth Department affirmed Supreme Court’s rulings re: the Water Agreement and Lease Agreement entered into by the Village of Painted Post. The Lease Agreement concerned the construction of a railroad transloading facility and the Water Agreement concerned the sale of one million gallons of water per day (gpd) to be transported (by rail) to Pennsylvania. The Fourth Department determined the Water Agreement was a Type I, not Type II, action which required review under the State Environmental Quality Review Act (SEQRA). Because the Village of Painted Post did not conduct a SEQRA review of the Water Agreement, the relevant village resolutions were annulled and a consolidated SEQRA review of both the Water Agreement and Lease Agreement was ordered:

Although the Water Agreement does not call for the use of “ground or surface water in excess of [two million gpd]” (6 NYCRR 617.4 [b] [6] [ii]) and thus is not a Type I action under that subsection, Type I actions also include “any Unlisted action[] that exceeds 25 percent of any threshold in this section, occurring wholly or partially within or substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space” (6 NYCRR 617.4 [b] [10]). Where, as here, the Department of Environmental Conservation (DEC) has set a threshold clarifying that the use of a certain amount of a natural resource, e.g., land or water, constitutes a Type I action, it is reasonable to assume that the DEC has “implicitly determined that an annexation of less than [that threshold] is an [U]nlisted action’ ” … . We thus conclude therefrom that the Water Agreement is implicitly an Unlisted action. Inasmuch as there is also evidence in the record that the transloading facility may be substantially contiguous to a publicly owned park and the Water Agreement calls for the use of surface water in the amount of one million gpd, i.e., 50% of the threshold in section 617.4 (b) (6) (ii), the Water Agreement could also be deemed a Type I action under 6 NYCRR 617.4 (b) (10).

Consequently, SEQRA review was required for the Water Agreement. Although the Village conducted a SEQRA review of the Lease Agreement, segmentation, i.e., the division of environmental review for different sections or stages of a project (see 6 NYCRR 617.2 [ag]), is generally disfavored … . We thus conclude that the court properly determined, on the merits of the first cause of action, that all of respondent Village’s resolutions should be annulled and that a consolidated SEQRA review of both agreements was required. Matter of Sierra Club v Village of Painted Post, 2015 NY Slip Op 09707, 4th Dept 12-31-15

ENVIRONMENTAL LAW (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/STATE ENVIRONMENTAL QUALITY REVIEW ACT [SEQRA] (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/WATER (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/MUNICIPAL LAW (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)

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