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New York State Environmental Quality Review (9-NY-a)

New York’s State Environmental Quality Review Act (SEQR) requires all state and local government agencies to consider the environmental impacts of their actions—where they have the discretion to approve, fund or directly undertake an activity—and to balance these environmental impacts with social and economic factors. State and local agencies must review projects early on in the planning stages, so that projects can be modified as needed to avoid adverse impacts to the environment. The SEQR broadly defines the term “environment” as: “the physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health.” See N.Y. Env. Cons. L. § 8-0105.6); see 6 CRR-NY VI 617.1; 6 CRR-NY VI 617.2); New York Division of Environmental Permits - SEQR: Guiding the Process.


State Environmental Quality Review Process

9-NY-a.1 to 9-NY-a.2 – Has the Developer Filed for a FERC License or Exemption?

If the Federal Regulatory Energy Commission (FERC) has jurisdiction over a hydropower project, the Federal Power Act preempts the State from conducting a state environmental quality review of the project. FERC obtains jurisdiction over a hydropower project when the developer files for a FERC license or exemption. New York Department of Environmental Conservation – SEQR Handbook: Table of Contents: A. SEQR and the National Environmental Policy Act (NEPA).

In the absence of an application for a FERC license or exemption, the State retains jurisdiction and the Department of Environmental Conservation (DEC) may conduct a SEQRA review of the hydropower project. For example, if the developer files for a preliminary permit, rather than a FERC license or exemption, the DEC may review the project under the SEQRA. A preliminary permit allows the developer to perform studies in preparation for a license and places the developer first in line once an application for a FERC license is filed. A Review of Regulatory and Policy Requirements for Hydrokinetic Power Projects in New York State, at 12, 35, 46. The State also retains the authority to conduct a SEQRA review of hydropower projects excluded from FERC’s licensing jurisdiction, such as hydropower facilities located on non-federally owned conduits with installed capacities up to 5 MW. 16 USC § 823a(a).


9-NY-a.3 - Does a State or Local Agency Have Discretion to Approve, Fund or Directly Undertake the Project?

The State Environmental Quality Review (SEQR) Act is “triggered” if a state or local agency has discretion to approve, fund, or directly undertake a project that might have an effect on the environment. An agency has discretion if its decision will determine whether, or how, the project may be undertaken. For example, if the hydropower project is to be located within the State’s jurisdictional waters, the New York State Office of General Services may have the authority to issue or deny an easement for the use of state lands. A Review of Regulatory and Policy Requirements for Hydrokinetic Power Projects in New York State, at 46-47. SEQR begins when the developer first submits an application to a state or local agency for review. 6 CRR-NY 617.6. If the agency does not have discretion to approve, fund or directly undertake the project, no environmental quality review is required and the developer may continue with the project. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.4 to 9-NY-a.7 –Triggering Application

The first agency to receive an application from the developer (the “first involved agency”) reviews the application and supporting materials in order to assign a preliminary classification (Type I, Type II, or Unlisted) to the project and determine whether the project is subject to SEQR. The first involved agency should consider all known phases of the project, even if the project involves activities spanning a number of years. The first involved agency must also use every reasonable effort to identify other state or local agencies having authority over the project under NYS statute, local law or ordinance. 6 CRR-NY 617.5; New York Division of Environmental Permits - SEQR: Guiding the Process.

If the developer’s application and supporting materials are not clear with respect to possible future phases of the project, or other agencies having authority over the project, the first involved agency will request additional information from the developer. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.8 to 9-NY-a.9 – Classify Project as Type I, Type II or Unlisted

To determine whether the SEQR applies to a project, the first involved agency classifies the project as Type I, Type II, or Unlisted. Classification is important because it determines the level of initial environmental review required before the project can proceed. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.10 to 9-NY-a11 – Type II Action

Type II, the least significant class of actions, includes activities that the SEQR statute or regulations exclude or exempt from review. See 6 CRR-NY VI 617.5. Agencies may list additional Type II activities provided the agencies’ Type II lists are no less protective of the environment than the existing statewide Type II list and do not include items from the statewide Type I list. 6 CRR-NY VI 617.5. The impacts of Type II projects can generally be managed by attaching conditions to the relevant agency’s approval or funding of the project. Type II projects include, among other things:

  • The maintenance, repair, replacement, rehabilitation or reconstruction of a hydropower structure or facility involving no substantial changes; and
  • Continuing agency administration and management of a hydropower project.

6 CRR-NY 617.5; New York Division of Environmental Permits - SEQR: Guiding the Process. Type II classification completes SEQR. SEQR does not require a determination of significance or an Environmental Impact Statement (EIS) for Type II projects. 6 CRR-NY 617.3(f); New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.12 – Type I Action

Type I actions are identified at 6 CRR-NY VI 617.4 and include, among other things, projects that alter more than 10 acres of land and projects that are located in close proximity to a state or federal historic site, publicly owned parkland, open space, or national natural landmark. 6 CRR-NY VI 617.4.

The Type I list is not exhaustive. Agencies may create additional, local Type I items, provided the list is no less protective of the environment than the statewide list. The local Type I list may not include items from the statewide Type II list. A Type I project carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS. If the first involved agency classifies the project as Type I, it must initiate a coordinated review of the project in order to determine whether the developer must prepare an EIS. 6 CRR-NY VI 617.4; New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.13 to 9-NY-a.14 – Unlisted Action

Any action or proposal not specifically included on either the statewide Type I or Type II list qualifies as an “Unlisted” action. Each individual agency with jurisdiction over the project may proceed with its own uncoordinated SEQR review of the Unlisted action. If no involved agency determines that an EIS is required, the SEQR process is complete. However, if any agency decides that an EIS is required, that agency must initiate a coordinated review of the project for purposes of SEQR. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.15 –Environmental Assessment Form (EAF)

The involved agencies determine the project’s environmental significance based upon the developer’s application and related information received from the developer, including the Environmental Assessment Form (EAF). There are two versions of the EAF:

  1. A Short Form EAF; and
  2. A Long (Full) Form EAF.

6 CRR-NY VI 617.4; New York Division of Environmental Permits - SEQR: Guiding the Process. A full EAF must be used to determine the significance of Type I projects. Although the short EAF may be used to determine the significance of an Unlisted project, the lead agency may choose to use the full EAF for Unlisted projects if the short EAF does not provide information sufficient to support a determination of significance. However, the determination that an EIS is needed must be based on a Full EAF. The EAF is composed of three parts. The developer must complete and submit Part 1 of a Full EAF. Part 1 requires the developer to provide three main classes of information, including the following:

  1. Site description;
  2. Project description; and
  3. Zoning and planning information.

New York Division of Environmental Permits - SEQR: Guiding the Process. The developer is responsible for providing accurate, complete and comprehensible information when completing Part 1 of the EAF. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.16 to 9-NY-a.17 - Identify Other Jurisdictional Agencies

The need for an EIS is determined by a designated Lead Agency, based on coordination with all other involved state and local agencies having jurisdiction over the project. If more than one agency is involved, after receiving the developer’s application, the first involved agency identifies and transmits a coordination package—including a coordination letter, copies of the developer’s application, and Part 1 of the developer’s EAF—to each identified jurisdictional agency. New York Division of Environmental Permits - SEQR: Guiding the Process.

The coordination package should include enough information to allow each involved agency to prepare an informed response regarding the environmental concerns raised by the proposed action. Part 1 of the EAF must be included in the coordination package and should, at a minimum, be accompanied by the following additional items:

  1. A general location map;
  2. Any summary application materials providing a more thorough description of the proposed project than the EAF alone; and
  3. Copies of the plan or sketch pages sufficient to characterize the full extent of the proposed project.

New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.18 - Select Lead Agency

In response to the coordination package, each involved agency should indicate its preference as to which involved agency should serve as the Lead Agency for purposes of SEQR. Each involved agency should also preliminarily identify environmental concerns raised by the proposed action. The involved agencies must agree upon a lead agency within 30 days from the date that the EAF is submitted. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.19 to 9-NY-a.21 – Review EAF

The lead agency is responsible for reviewing the EAF and making the “determination of significance” regarding the potential environmental impacts of the proposed project. The determination of significance is the decision whether to require an EIS to further explore potential impacts of the proposed action as well as options to avoid or mitigate the impacts. New York Division of Environmental Permits - SEQR: Guiding the Process. During the EAF review, the Lead Agency reviews all of the developer’s EAF - Part 1 responses, flags any problems, and identifies missing information. The Lead Agency may require that the developer supplement the EAF if additional information is needed in order to support and expand upon the subject matter identified in the EAF and/or to make a determination of significance. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.22 – Initiate Coordinated SEQR Review

The coordinated SEQR review is based on input from all jurisdictional agencies. This provides for a single review of a proposed project, which addresses all concerns identified by the involved agencies as well as any general environmental concerns which other interested agencies or public may identify. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.23 to 9-NY-a.24 – Determine Significance of Project’s Effect on the Environment

The Lead Agency makes a single determination of significance regarding the project’s effect on the environment, based upon the developer’s application materials, the EAF, and any input received from other involved agencies. First, based upon the information provided in these material and Part 1 of the EAF, the Lead Agency identifies the project’s potential adverse impacts. New York Division of Environmental Permits - SEQR: Guiding the Process. The Lead Agency may consider, among other things, the following criteria, which are considered indicators of significant adverse impacts on the environment:

  1. A substantial adverse change in existing air quality, ground or surface water quality or quantity, traffic or noise levels; a substantial increase in solid waste production; a substantial increase in potential for erosion, flooding, leaching or drainage problems;
  2. The removal or destruction of large quantities of vegetation or fauna; substantial interference with the movement of a resident or migratory fish or wildlife species; impacts on a significant habitat area; substantial adverse impacts on a threatened or endangered species of animal or plant, or the habitat of such a species; or other significant adverse impacts to natural resources;
  3. The impairment of the environmental characteristics of a critical environmental area (as designated pursuant to 6 CRR-NY VI 617.14(g));
  4. The creation of a material conflict with a community’s current plans or goals as officially approved or adopted;
  5. The impairment of the character or quality of important historical, archeological, architectural, or aesthetic resources or of existing community or neighborhood character;
  6. A major change in the use of either the quantity or type of energy;
  7. The creation of a hazard to human health;
  8. A substantial change in the use, or intensity of use, of land including agricultural, open space or recreational resources, or in its capacity to support existing uses;
  9. The encouraging or attracting of a large number of people to a place or places for more than a few days, compared to the number of people who would come to such place absent the action;
  10. The creation of a material demand for other actions that would result in one of the above consequences;
  11. Changes in two or more elements of the environment, no one of which has a significant impact on the environment, but when considered together result in a substantial adverse impact on the environment; or
  12. Two or more related actions undertaken, funded or approved by an agency, none of which has or would have a significant impact on the environment, but when considered cumulatively would meet one or more of the criteria in this subdivision.

6 CRR-NY VI 617.7(c).

Once the Lead Agency has identified the potential adverse impacts of the project, the Lead Agency considers Part 2 of the EAF, in order to estimate the likely size and extent of the project’s impact on the environment. The lead agency must “take a hard look” at every potential impact. If the project design includes mitigating measures for one or more potential impacts, the Lead Agency should consider those measures in evaluating likelihood of occurrence and magnitude of potential impacts. New York Division of Environmental Permits - SEQR: Guiding the Process. If the Lead Agency identifies one or more potentially large impacts, the Lead Agency must then proceed with Part 3; although it is good practice to complete Part 2 even if the Lead Agency identifies only small to moderate impacts. New York Division of Environmental Permits - SEQR: Guiding the Process. In Part 3 of the EAF, the Lead Agency assesses the importance of the project’s environmental impacts. Importance relates to the valuation of the project’s impacts, and should be based on factors including:

  1. The likelihood of the impact actually occurring;
  2. Probable duration of impacts;
  3. The nature and quality of the resources likely to be affected;
  4. The potential for the action to affect resources beyond the project site; and
  5. The consistency of the proposal with any existing local or regional land use plans and implementing ordinances.

New York Division of Environmental Permits - SEQR: Guiding the Process. Part 3 essentially provides the Lead Agency with an organizational tool that will help the agency to articulate its Determination of Significance. The lead agency must articulate, in writing, its conclusions regarding the significance of possible impacts and the process it used to reach those conclusions.. The Determination of Significance is the Lead Agency’s decision whether or not to require further study of the project’s environmental impacts through the preparation of an EIA. New York Division of Environmental Permits - SEQR: Guiding the Process. The lead agency must issue a Determination of Significance within 20 days of its establishment as lead agency, or within 20 days of receiving all information it may reasonably need to make a determination of significance. 6 CRR-NY VI 617.6.


9-NY-a.25 - Negative Declaration

If the Lead Agency determines that the project will not have a significant effect on the environment, the Lead Agency issues a “Negative Declaration.” The Negative Declaration must show that the Lead Agency identified and thoroughly analyzed relevant areas of environmental concern. Additionally, the Negative Declaration must contain:

  1. A statement that it is a Negative Declaration for purposes of Article 8 of the Environmental Conservation Law;
  2. The name and address of the Lead Agency;
  3. The name, address and telephone number of a contact person representing the Lead Agency who can provide further information;
  4. The SEQR classification of the project (action);
  5. A brief and precise description of the nature, extent and location of the action; and
  6. A brief statement of the reasoning that supports the determination.

Generally, after the Lead Agency issues the Negative Declaration, no further SEQR review is required. The lead agency may prepare a conditioned negative declaration provided that it has:

  1. Completed a full EAF:
  2. Completed a coordinated review of the project;
  3. Imposed SEQR conditions that have mitigated all significant environmental impacts and which are supported by the full EAF and any other documentation;
  4. Published notice of the conditioned negative declaration in the Environmental Notice Bulletin and a minimum 30-day public comment period has been provided; and
  5. Complied with the provisions of 6 CRR-NY VI 617.7(b) and 712.12(b).

6 CRR-NY VI 617.7; New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.26 to 9-NY-a.27 – Does the Lead Agency Decide to Re-Examine the Negative Declaration

The Lead Agency may re-examine a Negative Declaration at any time prior to its final decision to approve, fund, or directly undertake an action if it determines that a significant environmental impact may result from project modifications; from a change in circumstances not previously addressed; or based on relevant new information not previously available. 6 CRR-NY VI 617.7; New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.28 – Notice of Intent to Reconsider

The Lead Agency must notify the developer and all involved agencies of its intent to reconsider the Negative Declaration. 6 CRR-NY VI 617.7; New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.29 –Does the Lead Agency Decide to Rescind the Negative Declaration?

If the Lead Agency rescinds the Negative Declaration, it must issue a Positive Declaration and require preparation of an EIS. If the Lead Agency elects not to rescind the Negative Declaration, no further SEQR review is required. 6 CRR-NY VI 617.7; New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.30 - Positive Declaration

A Positive Declaration is a determination by the Lead Agency that an action may result in one or more significant environmental impacts. A Positive Declaration must contain:

  1. A statement that it is a Positive Declaration for purposes of Article 8 of the Environmental Conservation Law;
  2. The name and address of the Lead Agency;
  3. The name, address and telephone number of a contact person representing the Lead Agency, who can provide further information;
  4. The SEQR classification of the project (action);
  5. A brief and precise description of the nature, extent and location of the project;
  6. A brief description of potential significant environmental impacts that led to issuance of the positive declaration; and
  7. A statement as to whether or not the developer or the Lead Agency will conduct scoping to solicit public, and other agency, input as to the necessary contents of the EIS.

6 CRR-NY VI 617.7; 6 CRR-NY VI 617.12; New York Division of Environmental Permits - SEQR: Guiding the Process. If the Lead Agency issues a “Positive Declaration,” the agency must require the preparation of an EIS, to explore measures to avoid or minimize the likely impacts. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.31 to 9-NY-a.32 - Will the Developer or Lead Agency Use the Formal Scoping Process?

The Lead Agency is ultimately responsible for determining which issues and concerns should be included in the final written scope of the EIS. However, the developer or the Lead Agency may initiate a formal scoping process in order to ensure that all relevant issues will be discussed in the EIS. Scoping is not required. Scoping allows the public and other agencies to comment on the necessary contents of the EIS. If the developer or Lead Agency uses the formal scoping process, there must be an opportunity for public participation in the EIS development process. 6 CRR-NY VI 617.8; New York Division of Environmental Permits - SEQR: Guiding the Process. New York Regulations allow 60 days for the completion of scoping, however, it is common practice for the Lead Agency or developer to negotiate an extension. New York Regulations 6 CRR-NY VI 617.8(f); New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.33 - Draft Environmental Impact Statement (EIS)

If the Lead Agency determines that the action requires an EIS, the SEQR process continues with the preparation of a Draft EIS. The fundamental purpose of the Draft EIS is to identify the alternatives or mitigation measures necessary to avoid or minimize some or all of the project’s potential adverse environmental impacts. New York Division of Environmental Permits - SEQR: Guiding the Process. Generally, the project developer prepares and submits the draft EIS to the Lead Agency. If the developer does not exercise its option to prepare the draft EIS, the Lead Agency will prepare the draft. The Draft EIS must:

  1. Identify the significant environmental conditions and resources which may be affected by the project;
  2. Assess relevant environmental impacts of the project, or any of its components, on those environmental conditions and resources; and
  3. Eliminate or de-emphasize irrelevant or insignificant impacts or issues.

Reasonable alternatives for avoiding specific impacts must be discussed in the context of the specific impacts to which they are addressed. See 6 CRR-NY VI 617.9 for a complete list of requirements. 6 CRR-NY VI 617.9; New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.34 to 9-NY-a.36 - Is the Content of the Draft EIS Sufficient to Commence Public Review?

The lead agency must review the Draft EIS and determine whether the scope and content of the submitted draft are adequate for public review. If the Lead Agency determines that the Draft EIS is inadequate, it must provide the developer with notice of any deficiencies in writing. 6 CRR-NY VI 617.9; New York Division of Environmental Permits - SEQR: Guiding the Process. If the draft EIS meets the standards in New York Regulations 6 CRR-NY VI 617.9(b)), conforms to the final written scope (if any), and does not contain any major inaccuracies, the Lead Agency should accept the Draft EIS, issue a notice of completion, and initiate the public comment period for the Draft EIS. New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.37 - Notice of Completion

The developer/Lead Agency must prepare, file and publish notice that the Draft EIS is complete. The Notice of Completion must contain:

  1. A statement that it is a Negative Declaration for purposes of Article 8 of the Environmental Conservation Law;
  2. The name and address of the Lead Agency;
  3. The name, address and telephone number of a contact person representing the Lead Agency who can provide further information;
  4. The SEQR classification of the project (action); and
  5. A brief and precise description of the nature, extent and location of the action.

The notice must also contain a statement that the completed document is a draft and must state where copies of the Draft EIS can be found. The Lead Agency must also make a copy of the Draft EIS available on a publicly accessible web site. 6 CRR-NY VI 617.9.

Notice of completion must also be published in the Environmental Notice Bulletin and filed with:

  1. The chief executive officer of the political subdivision in which the project will be principally located;
  2. The Lead Agency;
  3. All involved agencies (see New York Regulations 6 CRR-NY VI 617.6(b)(3));
  4. Any person who has requested a copy; and
  5. If the action involves a developer, with the developer.

New York Regulations 6 CRR-NY VI 617.12.


9-NY-a.38 – Initiate Public Comment Period for Draft EIS

Once the developer/Lead Agency publishes notice that the Draft EIS is complete, the Lead Agency initiates the public comment period for the Draft EIS. The public comment period provides the public, as well as involved and interested agencies, an opportunity to comment on the Draft EIS and proposed alternatives and mitigation measures. The minimum public comment period on the Draft EIS is 30 days. New York Regulations 6 CRR-NY VI 617.9; New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.39 to 9-NY-a.40 - Does the Lead Agency Decide to Hold a Public Hearing?

The SEQR does not require a public hearing on the Draft EIA, but allows the Lead Agency to decide whether to include a public hearing as part of the public comment period. The Lead Agency should base its decision of whether or not to hold a public hearing upon the following considerations:

  1. The degree of interest shown by the public or involved agencies;
  2. Whether substantive or significant adverse environmental effects have been identified;
  3. The adequacy of mitigation measures and alternatives proposed; and
  4. The extent to which a public hearing can aid the agency decision-making processes.

New York Division of Environmental Permits - SEQR: Guiding the Process. If the Lead Agency’s underlying jurisdiction requires the agency to hold a public hearing, the SEQR encourages consolidation of the optional and required public hearings. If a hearing will be held, the lead agency must prepare and file notice of the hearing in a newspaper of general circulation, in the area of the potential impacts, at least 14 days in advance of the public hearing. New York Regulations 6 CRR-NY VI 617.9; New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.41 - Final EIS

Once the public comment period on the Draft EIS is complete, the developer prepares a final EIS. The final EIS includes:

  1. The draft EIS, including any revisions or supplements;
  2. Copies, or summary, of all comments received on the Draft EIS; and
  3. The Lead Agency’s response to all substantive comments.

New York Division of Environmental Permits - SEQR: Guiding the Process.


9-NY-a.42 - Notice of Completion

When the Final EIS is complete and approved by the Lead Agency, the Lead Agency must prepare, file and publish a notice of completion of the Final EIS, as required by New York Regulations 6 CRR-NY VI 617.12.

Note: the SEQR regulations do not require a public comment period or hearing for the Final EIS. New York Division of Environmental Permits - SEQR: Guiding the Process.

9-NY-a.43 to 9-NY-a.44 - SEQR Findings

SEQR Findings are the articulation of the involved agencies’ balancing and final decisions regarding the project. Each agency must make its own “findings” with respect to the project and must wait at least 10 days following the notice of completion to make such findings and to issue a final decision. The agencies’ findings must specifically:

  • Cite information from the final EIS on which the agency relied;
  • Explain the agency’s balancing of environmental with other factors;
  • Provide the agency’s rationale for its final decisions;
  • Certify that all SEQR’s rules have been followed; and
  • Certify that the alternative chosen, including any conditions attached to an approval, avoids or minimizes adverse environmental impacts to the maximum extent practicable, and incorporates practicable mitigative measures.

New York Division of Environmental Permits - SEQR: Guiding the Process. If an agency concludes that some impacts will not be fully avoided or mitigated, the agency must explain how it balanced those unmitigated adverse environmental impacts against economic, social, or public needs. New York Division of Environmental Permits - SEQR: Guiding the Process. SEQR concludes when the Lead Agency accepts the Final EIS and each involved agency issues its own findings. New York Division of Environmental Permits - SEQR: Guiding the Process.




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