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SEQRA: A Primer and Update for Local Government

By May 5, 2016 No Comments

SEQRA: A PRIMER AND UPDATE
FOR LOCAL GOVERNMENT
by Craig A. Slater, Esq.

THE SLATER LAW FIRM, PLLC
500 Seneca Street, Suite 504
Buffalo, New York 14204
Ph: (716) 845-6760
www.CSlaterLaw.com

    I.  Introduction

We have been working with the State Environmental Quality Review Act, Environmental Conservation Law (“ECL”) and 6 NYCRR Part 617, (“SEQRA”) for over twenty (20) years and still can’t seem to get it right.  Municipalities (and the State for that matter) are often put in the position of arbitrating the disputes and conflicting agendas of hurried developers, impacted citizens, and other agencies involved in the process all the while concerned that any one party with hurt feelings may involve them in expensive litigation.  SEQRA, therefore, often has the effect of stirring these hodge-podge interests into an intense cocktail of recriminations and hostility.  SEQRA, as a result, is used as a weapon and as a defense, a sword and a shield.  Although no better equipped to handle the political use of SEQRA, many of the basic concepts of SEQRA and the case law under SEQRA are now well settled and can enable municipalities to manage the SEQRA process effectively.

New and improved (“fine-tuned”) SEQRA regulations, effective January 1, 1996, have also been heralded as enhancing and improving the SEQRA review process, clarifying certain confusing elements of the SEQRA regulations, and providing increased certainty to project sponsors.

This presentation is intended to provide a general overview of SEQRA, the key concepts of SEQRA, the nuts and bolts procedure of SEQRA, the new SEQRA regulations, applicable landmark cases, and the Article 78 or litigation alternative.

 II.  The Purpose of SEQRA

When SEQRA became law on August 1, 1975, it established a process that required the consideration of environmental factors early in the planning stages of the actions which were directly undertaken, funded or approved by local, regional, and state agencies.  By incorporating a systematic approach to environmental review in the early planning stages, SEQRA presumed projects would be modified as needed to avoid adverse impacts on the environment.

The purpose of SEQRA as expressed by the Legislature is:

. . . to declare a state policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human, and community resources important to the people of the state.

ECL Article 8.  It is the intent of SEQRA to require all agencies that regulate activities that could affect the quality of the environment “…so that due consideration is given to preventing environmental damage.”  ECL §8-0103(9).

    III.  What is SEQRA?

SEQRA requires the consideration of environmental impacts, along with social and economic factors, in all agency decision-making.  SEQRA requires all levels of state and local government to assess the environmental significance of actions that they have discretion to approve, fund, or directly undertake.  If an action is determined not to have significant adverse environmental impacts, a determination of non-significance (negative declaration) is prepared.  If an action is determined to have potentially significant adverse environmental impacts, a determination of significance (positive declaration) is issued and the review process commenced with the preparation of a Draft Environmental Impact Statement (“DEIS”) is prepared.

The SEQRA process uses the EIS to examine ways to reduce or avoid adverse environmental impacts related to the proposed action.  SEQRA encourages communication among government agencies, project sponsors, and the general public.

    IV.  The Key Elements of SEQRA

SEQRA is both a procedural and substantive law.  In addition to requiring its procedures to be followed, the law mandates that agencies act on the substantive information produced in the environmental review.  This may result in project modification or even project denial if the adverse facts are overriding and adequate mitigation or alternatives are not available.

SEQRA has substantial and detailed procedural requirements that will be discussed below which are technical in nature.  SEQRA also contains, however, clear substantive requirements as well.  On this, SEQRA states that agencies must “…use all practicable means to realize the policies and goals…” of SEQRA and “…act and choose alternatives which, consistent with social, economic, and other essential considerations, to the maximum extent practicable, minimize, or avoid adverse environmental effects, including effects revealed in the environmental impact statement process”.  ECL §8-0109(1).

SEQRA does not require that the municipality reach a particular result on any issue nor permits a court to second-guess the Town’s decision nor does SEQRA give courts ultimate authority to approve or disapprove a properly authorized project where an adequate environmental review has been conducted in accordance with SEQRA requirements.   Jackson v. Urban Dev. Corp., 67 NY2d 400, 416, 503 NYS2d 298 (1986).  As stated by the Court of Appeals in Jackson “…it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQR, procedurally and substantively”.  Id; ECL §8-0109(8).

    V.  The Concept of Reasonableness

SEQRA requires multiple, broad-ranged, discretionary decisions and judgment be executed in implementing SEQRA.  For instance, SEQRA asks the lead agency to “reasonably” identify impacts, accumulate information, and render decisions as to significance.  While certainly there is no formalistic approach in arriving at answers, there is one basic principle or rule that can be used, namely the rule of reason.

The regulations provide abundant support for basing judgments on how to manage the SEQRA by taking a “reasonable” approach.  “Reasonableness” is referred to or discussed in the SEQRA regulations in many areas, including:

*    The determination of significance.
*    The identification and addressing of relevant areas of environmental impact.
*    The identification of reasonably foreseeable environmental impacts.
*    The identification of relevant potential impacts of an action.
*    The Full EAF requires the reviewer to be guided by the question of whether the reviewer’s responses and determinations have been “reasonable.”
*    For the Full EAF, the preparer must decide if it is reasonable to conclude that any potential impacts are important or significant.
*    Scoping of issues and identifying environmental issue.
*    The criteria for determining significance is based upon relevant, long-term, short-term, and cumulative effects that the agency determines are “reasonably related” to the project.
*    The draft Environmental Impact Statement should address reasonable alternatives.
*    In issuing SEQRA findings, the lead agencies require assessing reasonable alternatives, and practical mitigation measures.

The principle of reasonableness has been wholly supported by case law.  Kolish v. Lincoln West v. City of New York, 94 A.D.2d 483 (1st Dept., 1983); Environmental Defense Fund v. Flacke, 96 A.D.2d 862 (2d Dept., 1983).  SEQRA does not require the Town to identify and address every conceivable environmental impact, mitigating measure, or alternative of a project to satisfy the substantive requirements of SEQRA, only those reasonably related to the project or potential environmental impacts.  Id and Akpan v. Koch, 152 AD2d 113 (1st Dept., 1989), aff’d, 75 NY2d 561 (1990).

VI.  What Agencies are required to Comply with SEQRA?

All agencies of the government at the state, county, and local levels within New York, except the state legislature and the courts, must comply with SEQRA.  State agencies are defined as any department, agency, board, public development corporation, public authority, or commissions, and specifically include city, town, village, and county governing bodies.  Local planning boards, zoning boards of appeal, county health departments, and the DEC are examples of agencies subject to SEQRA.  6 NYCRR §617.2.

VI.  An Outline of the SEQRA Process

    SEQRA:  INITIAL REVIEW

Step 1:    Is the Action subject to SEQRA?

A.    Is the Agency approving a discretionary action?

B.    Classify the Action:  Is the action excluded, exempt, or a Type II action not subject to SEQRA review?

Step 2:    If so, have EAF prepared.

Step 3:    Is coordinated review required?

Step 4:    Establish Lead Agency.

    SEQRA:  SUBSTANTIVE REVIEW

Step 5:    Determination of Significance

Step 6:    If Necessary, Scoping the DEIS

Step 7:    Preparation of the DEIS

Step 8:    Acceptance of the DEIS

Step 9:    Public Comment.

Step 10:    Public Hearing

Step 11:    Preparation of a Final FEIS

Step 12:    Findings

VII.  An Outline of the SEQRA Process:
The Initial Review

As early as possible in an agency’s formulation of an “action” it proposes to undertake or approve, the agency must undertake an initial review of the project (1) to determine if the proposed action is subject to SEQRA; and (2) to determine whether the action involves more than one approving agencies.  Thereafter, the agency must (3) determine lead agency status; and (4) conduct coordinated review if necessary.  §617.6 (a)-(c).

These initial four (4) steps will be discussed below.  The initial review steps are:

Step 1:    Is the Action subject to SEQRA?

A.    Is the Agency approving a discretionary action?

B.    Classify the Action:  Is the action excluded, exempt, or a Type II action not subject to SEQRA review?

Step 2:        If so, have EAF prepared.

Step 3:        Is coordinated review required?

Step 4:        Establish Lead Agency.

Step 1:    IS THE ACTION SUBJECT TO SEQRA?

A. Does the Agency have discretionary approval of the action?

“The basic purpose of SEQRA is to incorporate the consideration of environmental factors into the existing planning, review, and decision making processes of state, regional, and local government agencies at the earliest possible time.  To accomplish this goal, SEQRA requires that all agencies determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment, and, if it is determined that the action may have a significant adverse impact, prepare or request an environmental impact statement.”  §617.1(c).

“No agency involved in an action may undertake, fund or approve the action until it has complied with SEQRA.”  §617.3(a).

An “action” includes any project or physical activities that may affect the environment by changing the use, appearance, or condition of any natural resource or structure that are directly undertaken by an agency, involve funding by an agency, or require one or more new or modified approvals from an agency.  An “action” also includes agency planning and policy making activities which may affect the environment and commit the agency to a definite course of future decisions and adoption of rules, procedures, or local laws or resolutions which may affect the environment.  §617.2(b).

An “agency” includes any local agency, board, authority, district, commission, or governing body, including any city, county, or other political subdivision of the state and any state department, agency, board, public benefit corporation, public authority or commission.  §617.2(v) and (ah).

Examples of “actions” under SEQRA include the following:

    Approval or direct development of physical project, such as:

*    shopping centers
*    factories or office buildings
*    dredging
*    residential development
*    public buildings
*    gravel mines
*    roads
*    landfills

 Planning activities that require a government agency decision, such as:

*    park development plans
*    formation of districts
*    land use plans
*    master plans

            Adoption of agency rules, regulations, procedures, and policies, such as:

*    local zoning and planning
*    wetlands protection
*    public health regulations
*    handling of hazardous or toxic waste

If the municipality or local agency has the authority to issue a discretionary approval of an “action”, like approving a permit, a license, other type of approval, the provisions of SEQRA apply.  §617.6(a).  Actions which do not require the exercise of any judgment or discretion, otherwise referred to as “ministerial actions” (defined at §617.2(w) are not subject to review under SEQRA.  §617.5(b)(19).  “Discretionary” decisions are ministerial in nature and involve no exercise of discretion, including where a permit or license is issued solely predicated on the applicant’s compliance or noncompliance with the relevant local building or statutory codes.  Put another way, “discretionary” decisions are those where choices are to be made on whether and how an action is to be approved and “non-discretionary” decisions are ministerial decisions entirely based upon whether a given set of facts or criteria have been fulfilled with the approval prescribed by law requiring no use of any judgment.

Examples of “discretionary decisions” under SEQRA would include:

*    zoning changes

*    preliminary/final plat approval

*    site plan approval

*    funding of projects by local/state IDA’s

*    construction of highways/municipal buildings

Examples of non-discretionary decisions under SEQRA would include:

*    compliance with codes

*    imposition of fees

*    building permits

        B.    Classify the Action: Is the action excluded, exempt, or a Type II action not subject to SEQRA review or a Type II or Unlisted Action?

The next step in a SEQRA process is to classify the action.  If the action is classified as a Type II, excluded, or exempt, the SEQRA process ends.  If the action is a Type I or unlisted action, a lead agency must be established.

         1.    Three classes which never require review under SEQRA:

a.    Exempt Actions:  These actions are specifically defined on a list of established by the NYS Legislature.

Exempt actions are actions identified in SEQRA (ECL §8-0105) which are not subject to review under SEQRA, including:

*    non-discretionary (ministerial) approvals
*    minor maintenance and repair activities
*    emergency actions
*    any actions of the New York State Legislature or any court
*    enforcement actions

b.    Excluded Actions:  These actions include actions undertaken, funded, or approved prior to the implementation of SEQRA and actions subject to review by the Adirondack Park Agency or Public Service Commission.

c.    Type II Actions:  These actions are specifically defined on the Type II list at §617.5.

Type II actions listed in §617.5 are determined not to have a significant impact on the environment.  Type II actions are never significant and never require the preparation of a determination of significance or a DEIS.  Some examples include:

*    rebuilding or replacing facilities, in kind, on the same site
*    minor structures such as garages, barns, or home swimming pools
*    routine permit and license renewals
*    repaving of existing highways
*    construction or expansion of non-residential structures of less than 4,000 square feet
*    minor residential structure, such as garages, car ports, patios, decks, swimming pools, tennis courts, etc.
*    granting of individual set-backs and lot line variances
*    granting of an area variance for a single, two or three-family residence
*    installation of traffic control devices

    Expanded Type II List

Under the new part 617 regulations, DEC has expanded the actions on the Type II list not subject to SEQRA review.  These include:

*     rehabilitation, as well as replacement or upgrading, of a building.

*    construction or expansion of a non-residential structure or facility involving less than 4,000 square feet that is consistent with zoning and land use control.

*    routine activities of education institutions including “capital construction” and expansion of existing facilities of up to 10,000 square feet.

*    the construction or expansion of a one, two, or a three family residence on an approved lot.

*    expansion, as well as construction or placement, of minor accessory/appurtenant residential structures including garages, carports, patios, desks, swimming pools, tennis courts, etc.

*    construction or expansion of a primary or accessory/appurtenant non-residential structure facility involving less than 4,000 square feet of gross floor space and not involving a change in zoning or use variance.

*    area variances for one, two, or three family residences.

*    adoption of moratorium on land development or construction (a moratorium is not “action” because it has no effect on the environment).

*    interpretation of the intent of an existing code, rule or regulation.

*    designation of local landmarks or inclusions within historic districts.

        2.    Two classes which require further review under SEQRA:

            a.  Type I Actions:

Type I actions meet or exceed thresholds listed in the SEQRA regulations and are likely to require the preparation of an EIS.  Some examples include:

*    adoption of a municipality’s master plan

*    changes in allowable uses of a zoning district affecting 25 or more acres

*    granting of a zoning change for an action that meets or exceeds Type I criteria

*    certain residential and non-residential facilities exceeding certain thresholds (see discussion below)

Type I actions do not always require an EIS, but the fact that an action or project is designated a Type I activities carries with it the presumption that it is likely to have a significant adverse impact on the environment and require a DEIS.  Section 617.4(a)(1).

            b.  Unlisted Actions:

Unlisted actions are actions which do not meet or exceed the thresholds contained on the Type I list and are not contained on the Type II, Exempt, or Excluded action lists.  Unlisted actions do not meet the Type I threshold but may still require an EIS.

            Step 2:    IF SO, HAVE AN ENVIRONMENTAL ASSESSMENT FORM PREPARED.

A full environmental assessment form (“EAF”) must be prepared for all Type I actions.  A full EAF is attached to Part 617 as an appendix.

A short environmental assessment form must, at a minimum, be completed for all unlisted actions.

            Step 3:    IS COORDINATED REVIEW REQUIRED?

When a project requires approval from more than one approving agency, all agencies with approval authority are considered “involved agencies”.  In these cases, SEQRA provides for “coordinated review” between the involved agencies.  6 NYCRR §617.6(b)(3).

When an agency receives an application to approve a Type I or an Unlisted action, however, the lead agency must, “as soon as possible”, transmit Part 1 of the EAF or DEIS and a copy of the application to all involved agencies and notify them that a lead agency must be agreed upon with 30 days of the date the EAF or DEIS was submitted.

For Type I actions, coordinated review is mandated.  For Unlisted actions, the lead agency has three options to consider.

First, coordinated review is not required for unlisted actions that are non-significant.  Each involved agency has the option to make its own determination of non-significant (negative declaration) without contacting the other involved agencies or establishing a lead agency.  If one of the involved agencies, subsequently determines that the action may have a significant impact and issues a positive declaration, the negative declarations issued by other involved agency are superseded and coordinated review, as required for a Type I actions, must be completed.

Second, if an involved agency determines that it would be beneficial to coordinate review, or that a draft EIS should be prepared, that agency must contact other involved agencies informing them of the decision to coordinate.  Coordination then occurs using the procedures for coordinating Type I actions.  §617.6.

Third, if during the review of the application the EAF, involved agency determines that potentially significant impacts could be eliminated or reduced to a non-significant level through conditions, the agency could consider using the conditioned negative declaration process.  Please note that a CND cannot be used for Type I actions.

                Step 4:    ESTABLISHMENT OF LEAD AGENCY

If there is only one involved agency, then the answer on the designation of lead agency is simple and that agency, obviously, automatically becomes the lead agency.  If there are two or more involved agencies, a lead agency must be established by agreement of the agencies within 30 days.  If any involved agency desires to be lead agency, it can indicate that in the coordination request and will assume that role if no other agency objects within 30 days.  Disputes on lead agency status are resolved by DEC.  Determinations by the lead agency are now binding on all.  §617.6(b)(3).

VIII.  An Outline of the SEQRA Process:
Substantive Review

    Step 5:  DETERMINATION OF SIGNIFICANCE

Once established, the lead agency must determine whether the project may have any significant adverse environmental impacts (the determination of significance).  The determination of significance must be made within 20 calendar days of the lead agency designation. If the lead agency finds that it does not have sufficient information to make this determination, it may request that the applicant provide it.  Upon review as described below, the lead agency must either determine that may have a significant adverse impact on the environment (a positive declaration) and require that a draft EIS be prepared or determine that the action will have no adverse environmental impacts or that the identified adverse environmental will not be significant (negative declaration).  §617.7(a).  For unlisted actions as described above, as well, the lead agency can chose to use the CND procedure.

A.  Information Considered

In determining significance, the lead agency must:

*    Consider the criteria set out in §617.7.

*    Review the EAF and any other supporting information to identify the relevant areas of environmental concern.

*    Identify relevant areas of environmental concern.

*    Thoroughly analyze the identified relevant areas of environmental concern to determine if the action may have a significant adverse impact on the environment.

*    Involved agency input, where applicable.

*    Public input, if any.

    B.  Criteria for Determining Significance

To determine whether a proposed Type I or unlisted action may have a significant adverse impact on the environment, the impact that may be reasonably expected to result from the proposed action must be compared against the criteria and §617.7(c)(1).  There are twelve factors that are listed which could lead to a finding of significance, but the regulations specifically provide that the list is illustrative, not exhaustive.

C.  Weighing the Criteria of Significance

For the purposes of determining whether an action may cause one of the consequences listed on the criteria for determining significance, the lead agency must consider:

*  Long term and short term.
*  Direct or Indirect.
*  Cumulative impact.

The lead agency must consider all reasonably related cumulative impacts of the project which are included in any long range plan of which the action under consideration is part; likely to be taken as a result; or dependant thereon.

*    Farrington Close Condominium v. Incorporated Village of Southampton, 613 NYS2d 257 (2d., 1994): Considering only part of the long-range park development plans improper.

*    Long Island Pine Barrens Soc. v. Planning Bd. of Town of Brookhaven, 611 NYS2d 917 (2d Dept., 1994)

*    Town of Bedford v. White, 611 NYS2d 920 (2d., 1994):  DOT’s decision to treat installation of traffic signal in historic district as Type II action was improper.

The significance of a likely consequence (i.e., whether it is material, substantial, or of larger import) should be assessed in connection with

*  Its setting (e.g. urban or rural)
*  Its probability of occurrence
*  Its duration
*  Its irreversibility
*  Its geographic scope
*  Its magnitude and
*  The number of people affected.

§617.7(c)(3).

           D.  Negative Declarations/Amending Declaration/CND’s

Every negative declaration must identify the relevant areas of environmental concern; provide a thorough analysis of the relevant concerns; and document the determinations, in writing, showing the reasons why the environmental concerns that were identified and analyzed will not be significant.

In this regard, unsupported statements that the action will not have a significant impact or no significant impacts were identified in the EAF are simple assertions and are not adequate for a legally sufficient negative declaration.  There must be adequate detail to explain why there are no significant impacts. Municipalities are encouraged to use the model negative declaration form that is found in the appendix to Part 617.

For an unlisted action (except CND’s), an agency is not required to file the negative declaration.  However, the agency must maintain a file accessible to the public containing the negative declaration.

The new SEQRA regulations now provide that a lead agency may, at any time prior to approval, amend a negative declaration when substantial changes are proposed for the project or new information is discovered.  §617.7(e).  If the lead agency determines that these issues were not previously considered but that no significant adverse environmental impacts have been identified, the lead agency must prepare, file, and publish the amended negative declaration in accordance with §617.12.  The amended negative declaration must contain reference to the original negative declaration and discuss the reasons supporting the amended determination.

As with an initial negative declaration, there is no requirement for an opportunity for public comment or review.

See the affirmation of the use of amended or revised negative declarations.  Chemical Specialties Manufacturing Association v. Jorling, 85 N.Y.2d 382 (1995).

The use of conditional negative declarations has received significant comment in recent years and has caused a great deal of confusion.  The new SEQRA regulations do not resolve that confusion.  See, for example, Shawangunt Mountain Environmental Association v. Planning Board of Town of Gardner, 156 A.D.2d 273 (3d Dept., 1990); Miller v. City of Lockport, 210 A.D.2d 955 (4th Dept., 1994); Hare v. Molineaux, 182 A.D.2d 908 (3d Dept., 1992); Hingston v. DEC 202 A.D.2d 877 (3d Dept., 1994).

An additional difficulty with CND’s is that they are not specifically mentioned in the SEQRA statute, but are dealt with directly in §617.7(b).  CND’s are not authorized for Type I actions and are subject to additional procedural requirements compared to regular negative declarations.  DEC has stated that the CND process when properly applied can be an effective tool in environmental analysis and can deliver environmental protection at reduced cost for agencies and project sponsors.

DEC had initially proposed allowing CND’s for unlisted and Type I actions, but withdrew the proposal for further review subsequent to the comment period.  In particular, the use of CND’s seemed to force applicants and reviewing agencies to walk a tightrope in how they “label” project changes designed to mitigate or avoid adverse impacts identified in an EIF or in the process of making a determination of significance.  One reading of applicable cases reveals that a negative declaration may be issued if the changes are identified as “revisions” to plans made at the applicant’s initiative, while another reading would be that these “revisions” are actually “mitigation measures” which would constitute impermissible conditions to a negative declaration on Type I projects.  These cases create a semantic problem that cannot be managed effectively.

§617.7(d) still provides for CND’s on unlisted actions with specific requirements of mitigation and publication of the CND.  The regulations also provide that a lead agency may rescind the CND if potentially significant adverse impacts that were not identified or addressed have been identified or there is a substantial deficiency in the proposed mitigation measures.

E.    Positive Declarations

If the lead agency has determined that the proposed action may result in a significant adverse impact and, therefore, will require the preparation of an EIS, it must prepare and file a determination notice known as a “positive declaration”.

Step 6:  IF NECESSARY, SCOPING THE DEIS

Subsequent to the issuance of a positive declaration, the lead agency may determine that scoping of the DEIS is appropriate.  Scoping is the process by which the issues to be addressed in the draft EIS are identified and are intended to assist the project sponsor in finalizing a DEIS.  §617.8.

The primary goals of scoping are to focus the EIS on potentially significant adverse impacts and to eliminate consideration of those impacts that are irrelevant or non-significant.  Scoping is not required.

If scoping is conducted, the project sponsor must submit a draft scope that contains at least the following:

*    brief description of the proposed action
*    potentially significant adverse impacts
*    data/information
*    mitigation measures
*    reasonable alternatives to be considered
*    issues not relevant or significant

If scoping is initiated by the lead agency, opportunity for public participation is mandatory.  §617.8(e).

Within sixty (60) days of the draft scope, the lead agency must provide a final written scope to the project sponsor.  If the final scope is not provided within this time, the project sponsor may prepare and submit a draft EIS.

Step 7:  PREPARATION AND CONTENT OF THE EIS

The project sponsor or the lead agency, at the project sponsor’s option, will prepare the draft EIS.  Normally, the project sponsor will do so.  A fee may be charged by the lead agency for preparation or review of an EIS.  §617.9.

If scoping has been undertaken, the lead agency will use the final written scope and standards in ‘617.9 to determine whether the draft EIS is adequate with respect to its scope and content for the purpose of commencing public review.  The determination of adequacy must be made within forty-five (45) days of the receipt of the DEIS.  This is a change from the authority under prior regulations that the lead agency extends the review period from thirty (30) to sixty (60) days.

The content of the EIS is now more specifically provided for in the regulations at §617.9(b) and comes from statutory authority.  The stated purpose of the revised regulations is to eliminate redundancy and emphasize that the EIS format can be modified to fit particular circumstances.  The new regulations are also intended to allow EIS’s to focus on significant rather than non-significant issues and to place discussion of impacts in a single section that would be limited to analyzing relevant and significant issues only.

SEQRA regulations at §617.9(b) describe the necessary components of an EIS.  Note of the following additions under new SEQRA regulations should be made:

*    reasonably related short-term and long-term impacts and cumulative impacts
*    unavoidable environmental impacts
*    irreversible commitment of resources
*    growth-inducing aspects
*    effects on the use and conservation of energy
*    effects on solid waste management
*    impacts of public acquisitions on agricultural production and lands
*    effects on specific groundwater protection areas

DEC regulations also now provide that the project sponsor describe and evaluate the range or reasonable alternatives which are feasible, considering the objectives and capabilities of the project sponsor but that “no action” alternative should only evaluate the adverse or beneficial site changes that are likely to occur in the reasonably foreseeable future.

This modification confirms that for private project sponsors, the “no action” alternative can include the “as of right” alternative where no discretionary approval is required.

Step 8:  ACCEPTANCE OF THE DEIS

As indicated above, the lead agency has a flat forty-five (45) days to review and accept the DEIS and determine its adequacy for public review in terms of scope and content.  A Notice of Completion must be prepared and filed as required by Part 617.

Step 9:  PUBLIC COMMENT/PUBLIC HEARING

Upon accepting the DEIS, the lead agency must determine whether it will simply solicit public comment of at least thirty (30) days or to conduct a hearing.  §617.9(3) and (4).  A public hearing is not mandated.

In determining whether or not to hold a SEQRA hearing, the lead agency must consider:

*    degree of interest in the action
*    substantive or significant environmental impacts involved
*    adequacy of mitigation measures
*    extent hearing is helpful to gathering public comment

Fourteen (14) days’ notice of the hearing must be given and the hearing must be held within fifteen (15) to forty-five (45) days of the notice.

Public comment must be accepted for at least thirty (30) days after filing of the Notice of Completion of the DEIS, as indicated above, or ten (10) days after a public hearing if one is held, whichever is later.

Step 10:  PREPARATION OF THE FINAL EIS

The Final EIS consists of:

*    DEIS
*    Public comments
*    Response to all substantive comments

Particular note should be made of a short cut upon the acceptance of a complete DEIS and the completion of public comment or public hearing on the DEIS.  Under §617.9(a)(5), a lead agency may determine that no final EIS is required and issue directly a negative declaration.

Step 11:  FINDINGS

DEC has modified slightly the findings language at §617.9 to clarify and reinforce the decision-making agencies obligations to weigh and balance environmental impacts against social, economic, and other factors and to include any mitigating conditions imposed by the agencies.  The regulations also make it clear that findings can be amended in appropriate circumstances such as a project modification.  Wilder v. New York State UDC, 154 A.D.2d 261 (1st Dept., 1989).  SEQRA findings must provide a rationale for the agency’s determination, certify that SEQRA has been complied with, and certify that:

. . . consistent with social, economic, and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigating measures that were identified as practicable.

§617.11(d)(5).

IX. Fees and Costs

6 NYCRR §617.13 clarifies that the lead agency may charge a fee for the costs of either preparing or reviewing the draft and/or final EIS, but not for preparing and reviewing EIS’s.

X.  Summary of Part 617 Changes

Overall, the revised Part 617 regulations provide significant improvement that should assist in going through what historically has been a cumbersome and time-consuming process.  DEC’s overall objectives were to improve the substance of environmental review, improve agency administration of the SEQRA process, clarify certain revisions, and provide greater certainty for project sponsors.

The principal changes in Part 617 can be summarized as follows:

*    shuffles the order of the regulations to more reflect the chronological sequence of the SEQRA process

*    adds to the list of Type II actions

*    provides guidance on scoping of EIS’s

*    revises the format for EIS’s

*    provides for amendments of negative declaration and findings statements

*    codifies statutory changes since the last regulatory amendments

DEC, however, avoided or deferred changes on the regulations to deal with controversial SEQRA topics, including:

(1)        Cumulative impact.  See Long Island Pine Barrens Society, Inc. v. Planning Board of Town of Brookhaven, 80 N.Y.2d 500 (1992); and

(2)        Conditional negative declarations.  See Ferrari v. Town of Penfield Planning Board, 181 A.D.2d 149 (4th Dept., 1992).

XI.  Judicial Review

Accompanying this presentation is an article we have prepared entitled SEQRA: A General Case Law Overview that outlines case law which discusses these SEQRA concepts, including the following areas:

*    Article 78 Proceeding described.

*    Standing: The actual non-economic harm test

*    Statute of limitations:  CPLR §217 has a very strict form on statute of limitations.

*    Standard of review for Article 78 proceedings.

The arbitrary and capricious standard. The courts will overturn a lead agency’s SEQRA determination of significance only when they are found to have proceeded in an arbitrary and capricious fashion or their decisions are unsupported by substantial evidence.  Jackson, supra; H.O.M.E.S., supra.  Courts cannot substitute their judgment for that of an agency as to the environmental consequences of its actions. Id.

*    Standard of review under SEQRA.

To comply with SEQRA the Town must show that it took the required “hard look” at the potential environmental impact of the project, considered the effects which could reasonably be expected to result from the proposed action, and made a “reasoned elaboration of the basis for it determination”. 6 NYCRR Section 617.7 (b); Id; H.O.M.E.S. v. NYSUDC, 69 A.D.2d 222, 232 (4th Dept., 1979).