Presentation on theme: "What, When, and a Start on How"— Presentation transcript:
1 What, When, and a Start on How WELCOME TO “SEQR 101"What, When, and a Start on How-We are not attorneys disclaimer
2 New York State Environmental Quality Review Act What Is “SEQR”?New York StateEnvironmental Quality Review ActStatute is Article 8 of NYSEnvironmental ConservationLaw Ch. 43, Consolidated Laws ofNYSRegulations are Part 617of Title 6 of the NewYork Codes, Rules and Regulations(”6 NYCRR”)-1975 State Environmental Quality Review Act- Passed by Legislature & Signed by Governor,- Regulations written at the agency level for implementation of Law
3 Purpose of SEQR Incorporate the consideration of environmental factors into anagency’s decision making processat the earliest possible time- key idea is that a state or local agency’s discretionary decision is the trigger mechanism.- SEQR Scales, not scales of just rather the balance of Economic, Social, and Environmental considerations.- Read Page 1 (d) of regs.
4 What Are “Environmental Factors”? SEQR Defines Environment BroadlyResources or characteristics that could be affected byan action, including:-Land, air, water, minerals-Flora, fauna-Noise-Features of historic oraesthetic significance-Population patterns-Community character- SEQR interprets the term environment very broadly- The Environment does not pertain to just Natural Resources.
5 What is An “Agency”? State Agencies County Legislatures A public body which has jurisdiction by law to fund, approve or directly undertake an “action”State AgenciesCounty LegislaturesTown or Village BoardsCity CouncilsPlanning BoardsZoning Boards of AppealSchool Boards- Notice absence of Federal Agencies- Point out agencies that you believe the audience are members of
6 Involved, Interested and Lead Agencies Who are they? What are they?An Involved Agency is a public body which has jurisdiction by law to fund, approve or directly undertake an actionAn Interested Agency is a public body which does not have jurisdiction over a project, but wishes to participate in the process because of its expertise or specific concernThe Lead Agency is an involved agency and is responsible for determining whether an EIS will be required, and for its preparation and filing if it is required6-Describe each type of agency and give scenario exampleNYS Department of Environmental Conservation
7 Agency is the Decision-Maker Must have independent, statutory decision-making authorityMay rely on staff or consultants for expertadvice or administration of processMay not delegate decisions or conclusions- What work of the SEQR process must be performed by the reviewing agency and to what extent outside help may be relied upon.
8 What Is An “Action”? When an Agency: Sponsors, undertakes or approves projects orphysical activitiesConducts planning or policy-makingthat may commit the agencyto a future course of actionAdopts rules, regulationsor proceduresCombinations of the above- 3 groups of actions- Physical actions directly performing or approving- Build a road, Build a school, approve subdivision, approve wetland permit•Site plan Review•Zoning Variance•Subdivision review- Planning or Policy making•Municipal land use plan, planning boardAdopt rules & regs•100' from 50' general permit for stream conditions•Give a local government example
9 How SEQR Works Agency Proposes Action or Receives Application Action Classified *Lead Agency EstablishedSignificance of Action Determined *Environmental Impact Statement, If NeededFindings and Agency Decision **This slide is an overview of the entire SEQR process of which each step will be further explored throughout the presentation.....SEQR is an sequential process which can have varying levels of review.... *indicate steps where the process can end.- Agency proposes an action or receives an application.School district proposes building a school.Town gets an application for a subdivision- Action Classified, Type I, Type II, Unlisted- Lead agency established- Significance of Action.Based on EAF Review.Neg Dec.Pos Dec- DEIS, EIS- FindingsSEQR Process Can Conclude At Any of These Points *
10 When Is the “Earliest Possible Time”? Start SEQR:Early enough to affectall decisions which couldimpact the environment,location as well as designBut far enough into planningthat the range of availablechoices can be defined.When an application is received or a discretionary decision is made
11 When An Agency Undertakes a Project: SEQR should be started at the earliest stages of project planning-Site selection is part of “action”when government is sponsor-Bond resolution also part of action-Exemption in regulationsfor preliminary studies-Don’t wait for final site plansFor example - new public or municipal facilitieslike schools, offices, roads, parks-feasibility of scoping out a site for a school vs choosing one of the sites.preliminary studies exempt (Type II (21) ... Conduct concurrent environmental, engineering, and economic feasibility studies
12 When Agencies Fund or Approve a Project: As an “Involved” Agency, SEQR Begins When an Application is Received-Review of and decisions on wetlands or other stateand local permits for site work-Review and decisions on state or localhighway access applications-Review and approval of applicationsfor state grants and loans- SEQR begins when an application is recived
13 SEQR for Planning and Policy-Making Agencies “Involved” If Decisions May Commit Them to Future ActionsComprehensive or program plans-SEQR applies to the planning, not only to individualresulting projectsAlso applies to formally-adopted policies that couldaffect the environment-Not new personnel rules oroperating hours for public facilitiesLocal laws and ordinancesAnalyze before adoptingPlanning and Policy Making- Municipal land use plan.Industrial, Residential, Agricultural zoning- Not Type II (20) Routine Agency Administration
14 “Actions” Under SEQR Thought Questions: What typical local activities would be “actions” under SEQR? Why, or why not?
15 Local Legislative Body Zoning Board of Appeals Agencies may not Act …Local Legislative BodyPlanning BoardZoning Board of Appeals… Before complying with SEQRA15NYS Department of Environmental Conservation
16 When an Agency is Sponsor: How Do You “Start SEQR”?When an Agency is Sponsor:▪First “involved agency”▪Should identify other state or local agencies who may be “involved”▪May reach out to other agencies duringproject planning to clarify jurisdictionsand interest▪Must “classify” the action
17 When an Agency Reviews: How Do You “Start SEQR”?When an Agency Reviews:First agency to receive an application responsiblefor initiating SEQR processFirst involved agency must identify other state orlocal agencies who may be “involved” based on oneor more jurisdictions over the project, for example:-Highway access-Natural resource-based permits-Local land use approvalsFirst agency must “classify” the action
18 “Classifying“ the Action Look at the “Whole Action”Consider all components, phases oraspects of a proposalExamples:-Projects to be undertaken in phases-Sequenced new construction plusconversions of old facilities-Projects requiring siting decisionsfollowed by final site design-Determining location as well as designof new residential facilities- Whole Action, Segmentation- give a segmentation example, Happy Acres Subdivision...
19 Classifying Actions Type 2 A Type 2 classification concludes SEQR Most maintenance or repair including upgradingbuildings to meet building and fire codesPurchase or sale of equipmentNew non-residential uses under 4,000 sq.ft.Routine educational activities, includingexpansion under 10,000 sq.ft. or school closing,but not new use following closingStatutory exemptionA Type 2 classification concludes SEQR-list in regs that are presumed benign-617.5-End of SEQR, Note to file to show SEQR was performed
20 Classifying Actions Type 1 Carry the presumption that they may have a significant adverse impact on the environment, and more likely to require the preparation of an Environmental Impact Statement (EIS)- list in regs, 617.4- Presumption of significant impact leading to EIS- Full EAF to Determine Significance- Coordinated review (indicate that will be explored later)
21 Classifying Actions Unlisted Fall between the two “listed” categories Type 2Fall between the two “listed”categoriesExamples:-New 20-unit apartment building-New non-residential use of 10 acres or less-Parking for less than 1,000 cars-Other activities not specifically listed in either617.4 or 617.5Require that SEQR continueType 1617.5617.4- Not on Type I or type II List- Full EAF or Short-Coordinated or Uncoordinated Review
22 Why Classification Matters Sets Basic Review RequirementsType 1 Actions:-Must “coordinate” with other “involved agencies“-Must use Full EAF (Environmental Assessment Form)Unlisted Actions:-May choose whether to coordinate-May use Full or Short EAFType 2 Actions-No further review required- Determines level of review an action will receive-reiterate the info from Type I, Type II, Unlisted slides
23 What is Coordinated Review? Establishes a “Lead Agency” to Conduct a Single, Integrated Environmental Review of Proposed ActionsLead Agency is responsible for the conduct andadministration of the SEQR review processMust have its own decision-making authorityMay not delegate to an advisory body- one agency serves as the lead agency to conduct the review even though their may be multiple involved agencies. (Just read do not explain to next slide)
24 Coordinated Review: How? Start by Establishing Lead AgencyAgency which proposes a project or first receives anapplication must:-Identify all potentially “involved” agencies-Send EAF Part I plus supporting maps or relatedmaterials to those agencies-Advise each that SEQR Lead Agencymust be establishedInvolved agencies should establishLead Agency within 30 days of noticeLead Agency should be established by consensusFrame in experiences with lead agency response letters
25 Uncoordinated Review Unlisted Actions Only Each agency acts independently-Do separate environmental reviewsAllowed under 617 but individual agency rulesor policy may require otherwiseIf any agency finds that a project may have significantadverse environmental impacts, uncoordinatedreview ends:-Must coordinate for Lead Agency-Other uncoordinated environmentalreviews superseded- uncoordinated until any one agency identifies a significant impact
26 Lead AgencyIf only one agency has jurisdiction, then it is the Lead AgencyIf more than one agency has jurisdiction, a Lead Agency is selected from among them by consensus26NYS Department of Environmental Conservation
27 “Involved” Agencies Thought Questions: Are there other agencies who are typically “involved” in your local projects? What is the basis for their being “involved”?
28 Lead Agency Determines “Significance” Sets Path of Environmental ReviewAnalyzeEIS(EnvironmentalImpact Statement)No EISPos DecNeg DecEAF Plus Plans or ApplicationLead Agency should determine significance within 20 days of being established.
29 Review Starts With the “EAF” (Environmental Assessment Form) Project, Site and Impact DescriptionsPart 1: Site and Project Descriptions-Prepared by Project SponsorPart 2: Potential Project Impactsand Magnitudes-Prepared by Lead AgencyPart 3: Importance of ImpactsIdentified in Part 2
30 Find and Use Additional Sources: Evaluate the EAF Part 1Find and Use Additional Sources:all project designs, studies, maps, applications orother documents available to dateresource and reference mapspublished sourcesother agencieslocal resources
31 Systematic Analysis by Category to Identify Potential Impacts Part 2: What Is Affected?Systematic Analysis by Category to Identify Potential Impacts-Land -Water -Air -Plants & Animals-Agricultural Land -Aesthetics-Historic & Archaeological-Open Space & Recreation-Critical Environmental Areas-Transportation -Energy-Noise & Odor -Public Health-Growth & Community Character
32 Determine Magnitude of Impacts Part 2: How Big an Effect?Determine Magnitude of ImpactsLead Agency must show assessmentIdentify potential impacts ofproposed action-“Yes” if any impact possible-“Maybe” should be treated as “Yes”Compare elements of proposedaction to examples and thresholds-Size only: small-to-moderate v. large-Large impact is not always significant impactBe reasonable-Use Part 2 examples as a guideReview Project as proposed by the project sponsor
33 Part 3: Weighing Impacts Evaluate potential impactsOne or more potentially large impacts identified inPart 2Describe impacts identified in Part 2-Include design features which avoidor reduce potential impacts▪Decide if any of the impacts identifiedas “potentially large” are important
34 Using the Environmental Assessment Form Thought Question:Who is responsible for the evaluations in Parts 2 and 3 when the lead agency is also the project sponsor?
35 Determining Significance What You Are Looking ForImpairment of “Community Character”Adverse changes to the environmentReduction of wildlife habitatHazard to human healthSubstantial change in the use of landCreating a conflict with adopted community plans or goals35NYS Department of Environmental Conservation
36 Determination of Significance Must Be In Writing▪Review the “Whole Action”▪Identify all relevant impacts▪Analyze / Take a “Hard Look” *▪Provide “reasoned elaboration”-explain why impact may,or will not be, significant* H.O.M.E.S. v NYS Urban Development Corporation69AD 2d 222, 418 NYS 2d 287(4th Dept., 1979)
37 Determination of Significance Be Explicit in Your “Reasoned Elaboration”▪ State whether you find each potential impactlikely, significant, or neither▪ Describe mitigation included in the project plans▪ Name sources you rely on to reach yourconclusions▪ Explain how cited sources support your
38 Determination of Significance Positive Declaration▪ Lead agency determines that the action has thepotential to cause or result in:-at least one-significant-adverse environmental impact▪ “Low threshold” for requiring an environmental impact statement
39 Determination of Significance Negative Declaration▪ Lead agency must conclude that project as proposedwill have no significant adverse environmentalimpacts, because:-no likely impacts were identified-no identified impacts are significant-Identified significant impacts are mitigated▪ Written determination must include reasons behindconclusions
40 After the Determination of Significance Two Possible PathwaysAfter a negativedeclaration,SEQR has beencompletedPlanning, design orreview continueunder fundamentalagency mandatesAfter a positivedeclaration, SEQRreview continuesNext step is definingcontent of the EISIntegrates withstandard process whendraft EIS is acceptedLeads to findings insupport of decision
41 Optional but recommended Scoping the Draft EISOptional but recommended▸Focus on significant issues▸Identify necessary information▸Identify alternatives or mitigation to minimize impacts▸Enable other agency and public input
42 Analytic, NOT Encyclopedic DEIS ContentAnalytic, NOT EncyclopedicDescribe the ActionDefine LocationDescribe the SettingEvaluate Potentially Significant AdverseEnvironmental ImpactsIdentify PotentialMitigation MeasuresDiscuss ReasonableAlternativesDEIS
43 Lead Agency “Accepts” After Review Draft EISLead Agency “Accepts” After ReviewDEIS often prepared and submitted by sponsorLead agency reviews to determine if DEIS is “adequate”-May be returned to sponsor for revision-Must provide specific written comments orsuggested changes- Lead agency has 45 days for reviewdays if resubmission
44 Required Element of SEQR Public Comment on DEISRequired Element of SEQRMinimum is 30 day public comment periodafter filing Notice of Completion of DEISHearing is optional under SEQR:-May run concurrently with any otherrequired hearing on the same project-Minimum of 14 days advance notice of hearing-Must start no less than 15 and no more than 60days after Notice of Completion of DEISSEQR public comment period must continue atleast 10 days after hearing closesNotice of Completion
45 FEIS: Lead Agency Product Lead Agency Responsible for Accuracy and AdequacyDEIS and any revisionsAll comments receivedLead agency responses toall substantive comments+DEISFEIS=
46 Lead Agency is responsible. FEIS PreparationLead Agency is responsible.For projects where lead agency is reviewing anapplication, FEIS should be completed:-within 45 days after a public hearing OR-within 60 days after theDEIS Notice of Completionif there is no public hearingNotice of Completion of FEIS startsa 10-day public “consideration” periodNo involved agencies can issue findingsand final decisions until those 10 dayshave run
47 Linking the EIS to Agency Decisions After the FEISLinking the EIS to Agency DecisionsLead Agency must file Notice of Completion ofFinal EISNo sooner than 10 days after that notice, leadand every other involved agency must eachissue their own findings and decisions-“Findings” are rationale for each agency’sdecision-Comprehensive, reasonedelaboration based on EIS-Must certify that selected alternative, ormitigation measures, avoid or minimize adverseenvironmental impacts
48 Agency Final Decisions After SEQR SEQR Findings after an FEIS may be madeconcurrently with final decision on projectNegative Declaration may be madeNo enforcing entity named in the statute, soSEQR is enforced through the courtsSignificant factors in SEQR challenges:-Standing of litigants-Statute of limitations-Timing of challenges
49 Compliance Must Be “Substantive” and “Literal” Complying with SEQRCompliance Must Be “Substantive” and “Literal”▪ “Substantive”: agency must evaluate all potentialimpacts of a proposed action-Not just those within its own jurisdiction▪ “Literal”: agency must followSEQR’s procedural requirements-Appropriate to integrate SEQR with otherreviews-But other reviews may not be substituted for or berepresented as equivalent to SEQR’s requirements
50 Rules Vary by Project and Decision Filing & NoticeRules Vary by Project and DecisionFile with involved agencies, applicant, CEO of municipality, and individuals who request copies For:-Type 1 Negative Declaration-Notice of Completion ofDraft or Final EIS-Notices of Hearing (if any)-FindingsAlso publish in “ENB”:-Type 1 Negative Declaration;-EIS Acceptance or SEQR Hearing NoticeRetain in lead agency files:-Unlisted Negative DeclarationAs of 2/26/06:ALL EIS’s to be posted on “publicly- accessible” website(s), unless “impracticable”
51 A Few Practitioners’ Tips Think “Back to Basics”▪Involve the public early-provide thorough and accurate information▪Establish and maintaincommunication links with all parties:-sponsors, other agencies, and the public▪Remember why we “do SEQR”:-to balance environmentalwith other values indecision-making▪Prepare documents to guideand support agencies’decisions
52 For More Information NYS Department of Environmental Conservation Division of Environmental Permits625 Broadway Albany, NY(518)NYS Department of State41 State StreetAlbany, New York 12231(518) (Counsel’s Office)(518) (Division of Local GovernmentServices)