Understanding SEQRA
In New York State, most projects or activities proposed by a state agency or unit of local government, and all discretionary approvals from a NYS agency or unit of local government (including approving large projects, issuing certain permits, etc.), require an environmental impact assessment as prescribed by the State Environmental Quality Review Act (SEQRA). The Act is found at N.Y. Environmental Conservation Law (ECL) § 8-0101 et seq., and the regulations are found at N.Y.C.R.R. § 617 (Part 617).
Specifically, "No agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of SEQRA. A project sponsor may not commence any physical alteration related to an [agency] action until the provisions of SEQRA have been compiled with." Part 617.3(a).
This means these agencies must assess the environmental significance of all actions they have discretion to approve, fund or directly undertake. SEQR requires the agencies to consider the environmental impacts with social and economic factors when deciding to approve or undertake an “Action.” Some examples are: commercial and residential developments; work on roads; work in streams and other water bodies; work in wetlands; formation of districts and land use plans; local zoning and planning; public health regulations and handling of toxic wastes.
However, SEQRA does not dictate any particular level of environmental protection. Rather, it imposes a procedure for considering environmental impacts, including those the public wants considered. If the procedures are not adhered to, citizens may challenge the agency's decision in court, generally seeking to have the decision annulled and the environmental review process started over.
Environment
Under SEQRA, the “environment” is broadly defined and includes "the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character." ECL §8-0105 [6]. All of these are "environmental impacts," encompass three areas: (1) physical impacts, (2) impacts on population patterns, and (3) impacts on community character.
SEQRA Process
SEQRA requires that a public agency go through a number of steps to determine whether a proposed Action will have a significant impact on the environment.
Environmental Assessment Form (EAF)
To determine environmental impacts, a project sponsor completes either a "short form" EAF or a "long form" EAF depending on the type of activity that may be approved. The EAF is a checklist of potential areas where impacts could be significant. A properly completed EAF must contain enough information to describe the proposed action, its location, purpose, and potential impacts on the environment.
The decision-making body must review the completed EAF and make a "positive declaration" that adverse impacts will be "significant," or a "negative declaration" that they will not. This declaration must be in writing, must contain "a reasoned elaboration" of the basis for the declaration, and must show that the decision-making body "thoroughly analyze[d] the identified relevant areas of environmental concern."
Actions
Any project or physical activity that is directly undertaken, funded, or approved by a state or local agency that may affect the environment. Actions include planning and policy-making activities and the adoption of rules and regulations that may affect the environment.
Type I Actions
Type I actions are more likely to have a significant negative impact on the environment than unlisted actions. meet or exceed thresholds listed in the statewide or agency SEQR regulations. These are likely to require preparation of an EIS.
Examples include: non-residential projects physically altering 10 or more acres of land and zoning changes affecting 25 or more acres. A lead agency is established, however, Type I actions do not always require an EIS.
Type II Actions Type II actions have been determined to either not have a significant impact on the environment or to be exempt from environmental review for other purposes. No further SEQRA review is required.
Unlisted Actions Unlisted actions do not meet the Type I thresholds but are subject to review by the lead agency to determine whether they may cause significant adverse environmental impacts.
Some examples: non-residential projects physically altering less than 10 acres of land and
adoption of regulations, ordinances, local laws and resolutions that may affect the environment.
Lead Agency
The lead agency is the "involved agency" under the SEQRA that is principally responsible for undertaking, funding, or approving an action. Therefore the lead agency is responsible for determining whether an environmental impact statement is required in connection with the action and for the preparation and filing of the statement if one is required. In a coordinated review under SEQR, there are times when the involved agencies are not able to agree which one of them will become the lead agency. When this happens, any of the involved agencies or the project sponsor can request the Commissioner of the Department of Environmental Conservation to designate a lead agency [See 617.6(b)(5)]. The decisions of the Commissioner are organized by the type of project that was the subject of the dispute and by date of issuance.
Involved Agency
An agency that has jurisdiction by law to fund, approve, or directly undertake an action, but does not have the primary responsibility for that action as is with the lead agency under the State Quality Environmental Review Act.
Negative Declaration ("neg dec")
A "neg dec" is a written determination by a lead agency that the implementation of the action as proposed will not result in any significant adverse environmental impacts. A "neg dec" may end the review process, since there is, according to the decision-making body, no more to review. However, if the written neg-dec lacks a sufficient basis to support that decision then it can be challenged by citizens in court.
Article 78 Proceeding
An Article 78 Proceeding refers to an article of the Civil Practice Law and Rules that allows aggrieved persons to bring an action against a government body or officer. This device allows review of state and local administrative proceedings in court.
Conditioned Negative Declaration (CND)
This occurs when the decision-making body has identified "mitigations" to be performed by the project sponsor that amount to conditions for approval. The conditions, if met, must reduce the environmental impacts, making them insignificant. A public comment period must be opened, allowing the public to identify deficiencies in the conditions (that is, showing that the conditions will not actually make the impacts insignificant) or identify additional adverse impacts that have not been considered. If public comments do either, then an EIS must be prepared and eventually subjected to another public comment period.
The decision-making body responsible for approval of the activity analyzed in the DEIS is responsible for the adequacy of the final EIS. It must provide a response to public comments. This response is included in the FEIS, together with the earlier DEIS and all changes and additions to the DEIS. After the FEIS is filed and made available to the public, the decision-making body must prepare written findings, which usually coincide with its final decision.
Positive Declaration ("pos dec")
A positive declaration is a written determination by a lead agency that the implementation of the action as proposed is likely to have a significant adverse impact on the environment and that an Environmental Impact Statement (EIS) will be required.
Mitigations
SEQRA authorizes the decision-making body to withhold its approval unless it is satisfied the project sponsor will do things to reduce or offset significant environmental impacts, things the sponsor hadn't planned on.
Environmental Impact Statements (EIS)
The EIS should analyze in depth all potentially significant environmental impacts; alternatives to the proposed project, and it should propose mitigation measures. The decision-making body may reject the first draft EIS as incomplete and ask the project sponsor to address more impacts or address impacts in greater depth. The project sponsor can be made to pay the costs to the decision-making body of obtaining an independent expert review of the DEIS.
Once a draft EIS is accepted as complete, it must be made available to the public, and the decision-making body must provide a public notice that comments on the DEIS are invited for a minimum of 30 days. A public hearing may be held, and if it is the public comment period must extend at least to ten days after the hearing.
An EIS is a written "draft" or "final" document prepared in accordance with the SEQRA. An EIS provides a means for agencies, project sponsors, and the public to systematically consider significant adverse environmental impacts, alternatives, and mitigation strategies. An EIS facilitates the weighing of social, economic, and environmental factors in the planning and decision-making process. A draft EIS (DEIS) is the initial statement prepared by either the project sponsor or the lead agency and circulated for review and comment before a final EIS (FEIS) is prepared.
Related Impacts:
SEQRA also requires a review of impacts related to the proposed activity, even if they are likely to occur only after the proposed activity is completed, and even if they are indirect. See Part 617.7(c). These include:
Cumulative Impacts:
These are impacts on the environment that result from the incremental or increased impact of an action(s) when the impacts of that action are added to other past, present and reasonably foreseeable future actions. Cumulative impacts can result from a single action or a number of individually minor but collectively significant actions taking place over a period of time. Either the impacts or the actions themselves must be related. When making the determination of significance the lead agency (the agency that coordinates the environmental review) must consider reasonably related long-term, short-term, direct, indirect and cumulative impacts, including other simultaneous or subsequent actions, which are: (i) included in any long-range plan of which the action under consideration is a part; (ii) likely to be undertaken as a result thereof; or (iii) dependent thereon. 6 N.Y.C.R.R. §617.7(c)(2).
Long-term Impacts
This refers to impacts that will occur if one development is likely to lead to another. ECL §8-0109(2) specifically requires that all potential environmental impacts of a project subject to an EIS be considered, including the long-term and short-term effects of the project. Likewise, the SEQRA regulations require that an EIS assess all "reasonably related short-term and long-term impacts, cumulative impacts and other associated environmental impacts." 6 N.Y.C.R.R. §617.9(b)(5)(iii)(a).]
Segmentation
Segmentation of an action into components for individual review is contrary to the intent of SEQRA. Regulations under SEQRA recognize that "[a]ctions commonly consist of a set of activities or steps." 6 N.Y.C.R.R. §617.3(g). Therefore, "[c]onsidering only a part or segment of an action is contrary to the intent of SEQR[A]." 6 N.Y.C.R.R. §617.3(g)(1). SEQRA generally prohibits "segmentation," which is defined as "the division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance." 6 N.Y.C.R.R. §617.2(ag) When actions consist of several steps or sets of activities, the entire set must be considered the action, even if several separate agencies are involved.
Public Participation
Before making a final decision on whether environmental impacts of a proposed activity will be significant, even after any mitigations, the decision-making body must consider not only the information in an EIS, but also information provided by the public. Citizens can affect the decision about whether impacts are "significant," and therefore justify alteration or denial of the project, by submitting informative public comments, and by requesting information about the proposal well in advance of any public comment period.
Public Hearing
These hearings afford citizens affected by a reviewing board’s decision an opportunity to have their views heard before decisions are made. State statutes require that public hearings be held regarding the application for a variance or a subdivision approval. Public hearings regarding site plan applications and draft environmental impact statements may be required as a matter of local practice. The decision to hold a public hearing must be made after considering "the degree of interest in the action shown by the public or involved agencies; whether substantive or significant adverse environmental impacts have been identified; the adequacy of the mitigation measures and alternatives proposed; and the extent to which a public hearing can aid the agency decision-making processes by providing a forum for, or an efficient mechanism for the collection of, public comment." Part 617.9(a)(4).
Scoping
A process under the State Quality Environmental Review Act by which the lead agency identifies the potentially significant adverse impacts related to the proposed use and how they are to be addressed in an Environmental Impact Statement (EIS). This defines the scope of issues to be addressed in the draft EIS, including the content and level of detail of the analysis, the range of alternatives, the mitigation measures needed, as well as issues that do not need to be studied. Scoping provides a project sponsor with guidance on matters that must be considered and provides an opportunity for early participation by involved agencies and the public in the review of the proposal.
Final Decision
Final Approval: must be accompanied by findings that address the environmental impacts analyzed in the FEIS, and conclude that no significant adverse impacts remain after the agreed-upon mitigation measures, if any.
Final Denial: does much the same, identifying impacts that would not be avoided as reasons for the denial. Local law may provide for as little as 30 days from the time the public is notified about a final decision to challenge the decision in court. Otherwise, the limitation period is four months, and the challenge is brought as a petition under Article 78 of New York's Civil Practice Law & Rules, in the county Supreme Court.
Resources
The best way to determine whether SEQR applies to a proposed project is to work through the DEC's "SEQR Cookbook"
http://www.dec.state.ny.us/website/dcs/seqr/cookbook1.PDF
SEQRA Regulations http://www.dec.state.ny.us/website/regs/617.htm
SEQRA PATH http://www.dec.state.ny.us/website/dcs/seqr/1seqrmap.html
Handbook: http://www.dec.state.ny.us/website/dcs/seqr/handbook/index.html
Citizen’s Guide http://www.dec.state.ny.us/website/dcs/seqr/cookbook1.PDF
Local Official’s Guide http://www.dec.state.ny.us/website/dcs/seqr/seqrofficials.PDF
ENB http://www.dec.state.ny.us/website/enb/20031105/index.html
Environmental Assessment http://www.dec.state.ny.us/website/dcs/seqr/
Public Participation http://www.homestead.com/concernedcitizens/SEQRA_Primer.html
Environmental Law http://www.nyenvlaw.com/htm
NYPIRG Home Page • NYPIRG Environment Page • Watershed Page
