Stepping Through The SEQR Process

The first step in classifying the action is to decide whether it is subject to SEQR.

An action is subject to review under SEQR if any state or local agency has authority to issue a discretionary permit, license or other type of approval for that action. SEQR also applies if an agency funds or directly undertakes a project, or adopts a resource management plan, rule or policy that affects the environment.

If the proposed action does not require a discretionary decision, there is no requirement for review under SEQR. Otherwise continue:

The second step in classifying an action under SEQR is to determine whether it is a Type II Action, a Type I Action or an Unlisted Action

If the proposed action requires a discretionary approval, it may already have been determined to not significantly affect the environment - check to see if it is listed as a Type II action. If the action is not on a Type II list, it is either a Type I action or an "Unlisted Action".

Classes of actions under SEQR:

Type II Actions:

Type II actions are a group of actions which either:

• do not significantly impact the environment, or
• are otherwise precluded from environmental review under SEQR.

These actions are listed in Section 617.5 or are on an agency's locally adopted Type II list according to procedures established under Part 617.

Type II actions never require preparation of a "determination of significance" or a draft environmental impact statement. (E.I.S.)

If an action is classified as Type II, review under SEQR is completed. Although not required, an agency may choose to provide documentation in the project file that the action has been classified as Type II.

List of Type II Actions in Part 617.5C

If your action is not a listed Type II action, proceed to Type 1 and Unlisted Actions

Type 1 and Unlisted Actions:

Type I actions:

A type I action meets or exceeds a threshold contained in the list in section 617.4, or is one on an agency's locally adopted Type I list.

Type I actions:

• are more likely to have a significant adverse impact on the environment than Unlisted Actions
• may require a Draft Environmental Impact Statement. (DEIS)

Unlisted Actions

An action that does not meet or exceed a threshold contained in the Type I list in section 617.4, or one that is on an agency's locally adopted Type I list and is not contained in the Type II list. An Unlisted Action requires a determination of significance and may require preparation of a draft E.I.S.

If your action is a Type 1 or Unlisted Action, proceed to Step 2.

Type I Actions

Complete a Full Environmental Assessment Form, Part 1 (FEAF - Part 1, PDF) for any Type 1 action. The project sponsor / applicant completes Part 1 of the form and submits it to an involved agency together with any other applications that are required. It is recommended that the sponsor / applicant use the DEC's EAF Mapper to complete Part 1, selecting the Full EAF as the form to be completed. The non-mapper assisted form, however, is also acceptable for review submission purposes if the applicant / sponsor so desires. When the lead agency is established (See step 3), that agency is responsible for completing Part 2 of the EAF, and as needed, Part 3.The Full Environmental Forms Part 2 (FEAF - Part 2, PDF) and Full Environmental Form Part 3 (FEAF - Part 3, PDF) are separate from the EAF Mapper. The requirement for a full EAF may be waived if a draft EIS is prepared and submitted with the application.

If your action is a Type I Action, proceed to Step 3.

Unlisted Actions

Unlisted Actions usually require preparation of a Short EAF (SEAF).

The reviewing agency may elect to require a full EAF if it determines that the Short EAF will not provide sufficient information, or it may waive the requirement for an EAF if a draft E.I.S. is prepared and submitted with the application. If the option to prepare a full EAF is not exercised, a Short Environmental Assessment Form must be completed for the action. Steps for completing the Short Environmental Form Part 1 (SEAF - Part 1, PDF) by the applicant / sponsor, and Short Environmental Forms Parts 2 and 3 (SEAF - Parts 2 and 3, PDF) by the reviewing agency, are basically the same as those described above for Type I actions except the users are working with a Short EAF.

Unlisted Actions range from very minor activities to actions falling just below Type I thresholds.

Coordinated Review is not required for Unlisted Actions - Proceed to Step 4

Type I Actions

Coordinated Review is required for all Type I Actions.

The involved agency initially receiving an application for approval circulates the completed Part 1 of the full EAF and any other information supplied by the applicant to the other involved agencies.

All involved agencies should be identified by the applicant in the full EAF
(Part 1B, Government Approvals).

If only one agency is approving, funding or directly undertaking an action, that agency is automatically the lead agency. If there are two or more involved agencies, the involved agencies must agree on a lead agency within 30 calendar days. If any involved agency desires to be lead agency, it can indicate in the coordination request its willingness to act as lead agency, by stating that if no response is received within 30 days, it will assume the role of lead agency.

If the lead agency cannot be agreed on within 30 calendar days, any of the involved agencies or the applicant can ask the Commissioner of the Department of Environmental Conservation to resolve the dispute by designating the lead agency. [see 617.6(b)(5)] When the lead agency has been established / designated, proceed to step 4.

Unlisted Actions

Three options apply to Unlisted Actions:

• Coordinated Review Option:
  If any involved agency decides to coordinate the review, or intends to require a draft E.I.S., that agency must contact the other involved agencies informing them of the decision to coordinate. The involved agencies should be identified by the applicant in either the short EAF, (part 1, question 2) or the full EAF (Part 1B, Government Approvals).
  
  Coordination then occurs using the procedures for coordinating a Type I action - the only difference between coordinating a review for a Type I Action and an Unlisted Action is that either a short EAF or a full EAF may be used with an Unlisted Action.
   
• Uncoordinated Review Option:
  Each involved agency acts as a lead agency, and independently conducts an environmental review and determines the significance of the action. (Step 4) If all involved agencies issue negative declarations, the project may go forward. If any of the involved agencies issues a positive declaration, requiring an EIS, all other determinations of non significance are superseded and a coordinated review must commence.
   
• Conditioned Negative Declaration Option:
  If during the review of an application and the EAF submitted by an applicant on an Unlisted Action, an involved agency determines that the potentially significant impacts could be eliminated or reduced to a non significant level through imposed conditions, the agency may consider using the Conditioned Negative Declaration (CND) process. Use of this process requires a full EAF and coordinated review. For a brief discussion of the CND process see step 4b (found under Step 4).

The lead agency has 20 calendar days to make its determination of significance. If the lead agency finds that it does not have sufficient information to make this determination, it may request that the applicant provide it. The lead agency must make its determination within 20 days of receipt of all the information it reasonably needs. In determining significance, the lead agency must consider:

• the whole action and the criteria [see 617.7(c);
• the EAF and any other information provided by the applicant;
• involved agency input, where applicable; and
• public input, if any.

If the lead agency has determined that the proposed action will not have a significant adverse impact on the the environment (Negative Declaration), proceed to Step 4a. If the proposed action is an Unlisted Action involving an applicant and it will not have a significant adverse impact on the environment due to imposed conditions, proceed to Step 4b.

If the proposed action may have a significant adverse impact on the environment (Positive Declaration), then proceed to Step 4c.

Step 4a: Issuing Negative Declarations for Type I and Unlisted Actions

Every negative declaration must:

• identify the relevant areas of environmental concern;
• thoroughly analyze the relevant concerns; and
• document the determination, in writing, showing the reasons why the environmental concerns that were identified and analyzed will not be significant.

Unsupported statements such as "The action will not have a significant impact." or "No significant impacts were identified in the EAF " are assertions that are not legally sufficient for a negative declaration. Such statements must be supported with adequate detail to explain why there will be no significant impacts.

For a Type I action, the agency must, in addition to maintaining a file that is readily accessible to the public, prepare, file, publish and distribute the Negative Declaration as described in section 617.12

For an Unlisted Action, the reviewing agency must maintain a file readily accessible to the public containing the Negative Declaration.

Step 4b: Issuing a Conditioned Negative Declaration

For Unlisted Actions that involve an applicant, the lead agency may use the Conditioned Negative Declaration (CND) procedure. The following elements are necessary to support use of a CND.

• a full EAF has been prepared;
• a coordinated review has been completed [see 617.6(b)(3)];
• the SEQR conditions imposed [see 617.3(b) and 617.7(d)(1)(iii) have eliminated or reduced the identified potentially significant adverse impact(s) to a non-significant level;
• the notice is filed and published the same as for Type I actions [see 617.12(b) and (c)];
• a 30 day minimum public comment period has been provided (commencing with the appearance of the notice in the "Environmental Notice Bulletin" ) stating what conditions have been imposed.

The conditions appropriate for use in a CND are those outside the normal jurisdiction of the agency. A condition that requires analysis of the results of a future study is inappropriate. Such information must be available prior to determining significance. If comments are received, that in the lead agency's judgement, support the preparation of a draft E.I.S., or if the applicant requests an E.I.S., proceed to step 5.

Step 4c: Issue a Positive Declaration

If the lead agency has determined that the proposed action may result in a significant adverse impact, and therefore, will require preparation of an environmental impact statement, it must prepare and file a notice of that determination known as a Positive Declaration. The Positive Declaration must be prepared, filed, distributed, and published as prescribed in section 617.12 and it must state when and how scoping will be conducted.

Proceed to Step 5.

Scoping is the process by which the issues to be addressed in the draft EIS are identified. Scoping is not required for supplemental EIS's. The scoping process has six objectives:

• focus the draft EIS on the potentially significant adverse environmental impacts;
• eliminate non-significant and non-relevant issues;
• identify the extent and quality of information needed;
• identify the range of reasonable alternatives to be discussed;
• provide an initial identification of mitigation measures; and
• provide the public with an opportunity to participate in the identification of impacts.

Scoping may be initiated either by the lead agency or at the request of the applicant. The project sponsor must provide the lead agency with a draft scope that contains the items identified in paragraphs 617.8(e)(1) through (5).

The lead agency must provide a copy of the draft scope to all involved agencies and make it available to anyone who has written to express an interest in the project. The lead agency must also notice the availability of the draft and final scopes in the ENB and publish the documents on a publicly available website. If the action involves an applicant, within 60 days of receipt of the draft scope, the lead agency must supply a final written scope of issues to be addressed in the draft EIS to the applicant, all involved agencies, and to any individuals who expressed written interest in the project.

If the lead agency fails to provide a final written scope to the applicant within 60 days, the applicant may prepare and submit a draft EIS consistent with the submitted draft scope.

Involved agencies should participate in the scoping process, alerting the lead agency of their agency's concerns, jurisdiction(s) and information they will need to make their SEQR findings. The lead agency must provide a reasonable opportunity for the public and other interested agencies to participate in the scoping process. The DEC suggests that a minimum 20 day period for public review of the draft scope would be reasonable under most circumstances. Public participation can be accomplished by meetings, exchanges of written material or other methods.

Proceed to Step 6.

Who Prepares the Draft EIS?

The applicant always has the right to prepare the draft EIS. If the applicant refuses to prepare the draft EIS, the lead agency has the option of preparing the draft EIS, having it prepared by a consultant, or terminating its review of the action. If the agency decides to prepare the draft EIS, or have it prepared by a consultant, it can charge the applicant a fee to cover the direct costs of preparation (see 617.13). The lead agency has the ability to charge a SEQR fee for the review of an EIS, if it does not charge a fee for its preparation.

Basic Components of a Draft EIS

All draft EIS's must contain a cover sheet that includes the information specified in 617.9(b)(3), a Table of Contents following the cover sheet, and an adequate and accurate summary of the statement.

The format of the draft EIS may be flexible; however all draft EIS's must include the following elements:

• a concise description of the proposed action, its purpose, public need and benefits, including social and economic considerations;
• a concise description of the environmental setting of the areas to be affected, sufficient to understand the impacts of the proposed action and alternatives;
• a statement and evaluation of the potential significant adverse environmental impacts at a level of detail that reflects the severity of the impacts and the reasonable likelihood of their occurrence;
• the draft EIS should identify and discuss the following impacts only where they are relevant and significant:
  • reasonably related short term and long term impacts, cumulative impacts and other associated environmental impacts;
  • adverse environmental impacts that cannot be avoided or adequately mitigated if the proposed action is implemented;
  • any irreversible and irretrievable commitments of environmental resources that would be associated with the proposed action should it be imposed;
  • any growth inducing aspects of the proposed action on solid waste management and its consistency with the state or locally adopted solid waste management plan;
  • impacts of public acquisitions of land or interests in land or funding for non farm development on lands used in agricultural production and unique and irreplaceable agricultural lands within agricultural districts; and
  • if the proposed action is in or involves resources in Nassau or Suffolk Counties, impacts of the proposed action on and its consistency with the comprehensive management plan for the special ground water protection area program; and
  • measures to avoid or reduce both an action's impacts on climate change and associated impacts due to the effects of climate change such as sea level rise and flooding
• a description of the mitigation measures to minimize environmental impacts;
• a description and evaluation of the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor. The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed. The range of alternatives must include the no - action alternative. The no action alternative discussion should evaluate the adverse or beneficial site changes that may occur, in the absence of the proposed action. The range of alternatives may also include, as appropriate, alternative:
  • sites
  • technology
  • scale or magnitude
  • design
  • timing
  • use; and
  • types of action

For private project sponsors, site alternatives may be limited to parcels owned by or under option to, a private project sponsor. See section 617.9(b)(5) for more details on environmental impact statements.

Proceed to Step 7.

Upon receipt of a submitted draft EIS, the lead agency has 45 days to determine whether the document is adequate for public review in terms of scope and content. If the lead agency decides that the draft EIS is not adequate, it returns the document to the applicant with a written identification of the deficiencies.

The lead agency has 30 days to determine adequacy of a resubmitted draft EIS.

If the lead agency determines that the draft EIS is adequate, it issues a Notice of Completion of a Draft EIS.

Proceed to Step 8.

If the lead agency determines that the draft EIS is adequate, it issues a Notice of Completion of a Draft EIS and must also publish the Draft EIS on a publicly available website. This Notice of Completion must be prepared, filed, distributed, and published as prescribed in section 617.12

Proceed to Step 9.

The filing of the Notice of Completion of a Draft EIS starts the public comment period. That period must be a minimum of 30 days, during which all concerned parties are encouraged to offer their comments to the lead agency. The comment period must continue at least 10 days following the close of a public hearing, if one is held.

Proceed to Step 10.

After the lead agency accepts the draft EIS, it must decide whether to hold a public hearing [see 617.9(a)(4)]. A SEQR hearing is not mandatory. However, if a hearing is to be held, the lead agency must prepare and file a Notice of Public Hearing (notice).

The notice may be contained in the Notice of Completion of a Draft EIS. The hearing cannot start sooner than the 15th day following the Notice of Public Hearing, nor more than 60 days from the date of filing of the Notice of Completion of the Draft EIS.

The notice must be prepared, filed, and distributed as prescribed in section 617.12 The notice must also be published in a newspaper of general circulation in the area of the potential impacts at least 14 days prior to the hearing date[see 617.12(c)(2)].

If a public hearing is required under an applicable local or state law, it is not necessary to hold a separate SEQR hearing. One hearing can be held to satisfy both processes.

Proceed to step 11.

The lead agency is responsible for the adequacy and accuracy of the final EIS, regardless of who prepares it. The final EIS should be prepared within 45 calendar days after the close of any hearings or within 60 days after the filing of the draft EIS, whichever occurs last. The final EIS must consist of: the draft EIS, including any necessary revisions and supplements; copies or a summary of the substantive comments received and their sources ; and the lead agency's response to the comments. The Notice of Completion of the Final EIS must be prepared, filed distributed and published as described in section 617.12. The lead agency must also publish the Final EIS on a publicly available website.

Proceed to Step 12.

Part 617.11 requires that each involved agency must prepare its own written SEQR findings statement, after a final EIS has been filed and before the agency makes a final decision. The findings certify that the requirements of Part 617 have been met. A positive findings statement means that the project or action is approvable after consideration of the final EIS, and demonstrates that the action chosen is the one that avoids or minimizes adverse environmental impacts presented in the EIS and weighs and balances them with the social, economic and other essential considerations. If the action is not approvable, a negative findings statement documenting the reasons for the denial must be prepared.

The findings can be finalized no sooner than 10 days following the filing of the Notice of Completion of the Final EIS, and if the action involves an applicant, the lead agency's findings must be made within 30 days form the filing date.[617.11(b)]. Findings of each agency must be filed with all other involved agencies and the applicant at the time they are adopted. Findings and a decision may be made simultaneously.