[HISTORY: Adopted by the Town Board of the Town of Babylon 1-25-2011 by L.L. No.
2-2011.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Environmental Conservation Commission — See Ch. 18.
Department of Environmental Control — See Ch. 20.
Building construction — See Ch. 89.
Coastal erosion hazard areas — See Ch. 99.
Dredging — See Ch. 108.
Excavations — See Ch. 117.
Flood damage control — See Ch. 125.
Freshwater wetlands — See Ch. 128.
Site plan review — See Ch. 186.
Stormwater management and erosion and sediment control — See Ch. 189.
Zoning — See Ch. 213.
[1]
Editor's Note: This local law also repealed former Ch. 114,
Environmental quality review, adopted 6-7-1977 by L.L. No. 5-1977,
amended in its entirety 2-2-1988, as amended.
A.
This chapter is adopted pursuant to the Municipal Home Rule Law,
the State Environmental Quality Review Act (SEQRA) and the NYCRR Part
617 State Environmental Quality Review Regulations.
B.
In adopting the Town of Babylon Environmental Quality Review Act
(TOBEQRA), it is the Town Board of the Town of Babylon's intention
that all agencies conduct their affairs with an awareness that they
are stewards of the air, water, land and living resources and that
they have an obligation to protect the environment for the use and
enjoyment of this and all future generations.
C.
The basic purpose of TOBEQRA 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, TOBEQRA 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
environmental impact, prepare or request an environmental impact statement.
D.
It is the intention of the Town Board of the Town of Babylon that
the protection and enhancement of the environment, human and community
resources should be given appropriate weight with social and economic
considerations in determining public policy, and that those factors
be considered together in reaching decisions on proposed activities.
Accordingly, it is the intention of this chapter that a suitable balance
of social, economic and environmental factors be incorporated into
the planning and decision-making processes of the Town of Babylon.
However, it is not the intention of the TOBEQRA that environmental
factors be the sole consideration in decision-making.
As used in this chapter, unless the context otherwise requires,
the following terms shall have the meanings indicated:
43,560 square feet of land.
Chapter 114 of the Code of the Town of Babylon.
Include:
Projects or physical activities, such as construction or other
activities that may affect the environment by changing the use, appearance
or condition of any natural resource or structure, that:
Agency planning and policy-making activities that may affect
the environment and commit the agency to a definite course of future
decisions;
Adoption of agency rules, regulations and procedures, including
local laws, codes, ordinances, executive orders and resolutions that
may affect the environment; and
Any combinations of the above.
A local agency of the Town of Babylon.
Any person making an application or other request to an agency
to provide funding or to grant an approval in connection with a proposed
action.
A discretionary decision by an agency to issue a permit,
certificate, license, lease or other entitlement or to otherwise authorize
a proposed project or activity.
The state's coastal waters and the adjacent shore lands,
as defined in Article 42 of the Executive Law, the specific boundaries
of which are shown on the coastal area map on file in the office of
the Secretary of State, as required by Section 914(2) of the Executive
Law.
The Commissioner of the New York State Department of Environmental
Conservation.
A negative declaration issued by a lead agency for an unlisted action, involving an applicant, in which the action as initially proposed may result in one or more significant adverse environmental impacts; however, mitigation measures identified and required by the lead agency, pursuant to the procedures in § 114-7D of this chapter, will modify the proposed action so that no significant adverse environmental impacts will result.
A specific geographic area designated by a state or local
agency, having exceptional or unique environmental characteristics.
The Town of Babylon Department of Environmental Control.
An action planned and proposed for implementation by an agency.
Direct actions include but are not limited to capital projects, promulgation
of agency rules, regulations, laws, codes, ordinances or executive
orders and policy-making that commit an agency to a course of action
that may affect the environment.
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.
A form used by an agency to assist it in determining the
environmental significance or nonsignificance of actions. A properly
completed EAF must contain enough information to describe the proposed
action, its location, its purpose and its potential impacts on the
environment.
A written draft or final document prepared in accordance with §§ 114-9 and 114-10 of this chapter. An EIS provides a means for agencies, project sponsors and the public to systematically consider significant adverse environmental impacts, alternatives and mitigation. An EIS facilitates the weighing of social, economic and environmental factors early in the planning and decision-making process. A draft EIS is the initial statement prepared by either the project sponsor or the lead agency and circulated for review and comment. An EIS may also be a generic EIS in accordance with § 114-10 of this chapter, a supplemental EIS in accordance with § 114-9A(7) of this chapter or a federal draft or final EIS in accordance with § 114-15 of this chapter.
The weekly publication of the New York State Department of
Environmental Conservation published pursuant to Section 3-0306 of
the Environmental Conservation Law and accessible on the New York
State Department of Environmental Conservation's Internet web site
at http://www.dec.state.ny.us.
A written statement prepared by each involved agency, in accordance with § 114-11 of this chapter, after a final EIS has been filed, that considers the relevant environmental impacts presented in an EIS, weighs and balances them with social, economic and other essential considerations, provides a rationale for the agency's decision and certifies that the TOBEQRA requirements have been met.
Any financial support given by an agency, including contracts,
grants, subsidies, loans or other forms of direct or indirect financial
assistance, in connection with a proposed action.
To change or have an effect on any aspect(s) of the environment.
An agency that lacks the jurisdiction to fund, approve or
directly undertake an action but wishes to participate in the review
process because of its specific expertise or concern about the proposed
action. An interested agency has the same ability to participate in
the review process as a member of the public.
A private group such as a local civic organization that has
demonstrated, or is anticipated to, have an interest in an action.
An agency that has jurisdiction by law to fund, approve or
directly undertake an action. If an agency will ultimately make a
discretionary decision to fund, approve or undertake an action, then
it is an involved agency, notwithstanding that it has not received
an application for funding or approval at the time the TOBEQRA process
is commenced. The lead agency is also an involved agency.
An involved agency principally responsible for undertaking,
funding or approving an action, and therefore responsible for determining
whether an environmental impact statement is required in connection
with the action, and for the preparation and filing of the statement
if one is required.
Any local agency, board, authority, district, commission
or governing body, including any city, county and other political
subdivision of the state. Includes any agency of the Town of Babylon.
An action performed upon a given state of facts in a prescribed
manner imposed by law without the exercise of any judgment or discretion
as to the propriety of the act, such as the granting of a hunting
or fishing license.
A way to avoid or minimize adverse environmental impacts.
A written determination by a lead agency that the implementation of the action as proposed will not result in any significant adverse environmental impacts. A negative declaration may also be a conditioned negative declaration as defined in § 114-2 of this chapter. Negative declarations must be prepared, filed and published in accordance with §§ 114-7 and 114-12 of this chapter.
A permit, lease, license, certificate or other entitlement
for use or permission to act that may be granted or issued by an agency.
Any agency, individual, corporation, governmental entity,
partnership, association, trustee or other legal entity.
Includes, but is not limited to, the following activities:
vegetation removal, demolition, stockpiling materials, grading and
other forms of earthwork, dumping, filling or depositing, discharges
to air or water, excavation or trenching, application of pesticides,
herbicides, or other chemicals, application of sewage sludge, dredging,
flooding, draining or dewatering, paving, construction of buildings,
structures or facilities, and extraction, injection or recharge of
resources below ground.
A written statement prepared by the lead agency indicating that implementation of the action as proposed may have a significant adverse impact on the environment and that an environmental impact statement will be required. Positive declarations must be prepared, filed and published in accordance with §§ 114-7 and 114-12 of this chapter.
Any applicant or agency primarily responsible for undertaking
an action.
Any facility used for permanent or seasonal habitation, including
but not limited to realty subdivisions, apartments, mobile home parks,
and campsites offering any utility hookups for recreational vehicles.
It does not include such facilities as hotels, hospitals, nursing
homes, dormitories or prisons.
The process by which the lead agency identifies the potentially
significant adverse impacts related to the proposed action that are
to be addressed in the draft EIS, including the content and level
of detail of the analysis, the range of alternatives, the mitigation
measures needed and the identification of nonrelevant issues. Scoping
provides a project sponsor with guidance on matters which must be
considered and provides an opportunity for early participation by
involved agencies and the public in the review of the proposal.
The division of the environmental review of an action such
that various activities or stages are addressed under this chapter
as though they were independent, unrelated activities, needing individual
determinations of significance.
Any state department, agency, board, public benefit corporation,
public authority or commission.
An action or class of actions identified in § 114-5 of this chapter. When the term is applied in reference to an individual agency's authority to review or approve a particular proposed project or action, it shall also mean an action or class of actions identified as Type II actions in that agency's own procedures to implement State Environmental Quality Review (SEQR) adopted pursuant to Section 617.14 of Part 617 SEQR. The fact that an action is identified as a Type II action in any agency's procedures does not mean that it must be treated as a Type II action by any other involved agency not identifying it as a Type II action in its procedures.
All actions not identified as a Type I or Type II action
in this chapter or, in the case of a particular agency action, not
identified as a Type I or Type II action in the agency's own SEQR
procedures.
A.
No agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of TOBEQRA. A project sponsor may not commence any physical alteration related to an action until the provisions of TOBEQRA have been complied with. The only exception to this is provided under § 114-5C(18), (21) and (28) of this chapter. An involved agency may not issue its findings and decision on an action if it knows any other involved agency has determined that the action may have a significant adverse impact on the environment and until a final EIS has been filed. The only exception to this is provided under § 114-9A(5)(a) of this chapter.
B.
TOBEQRA does not change the existing jurisdiction of agencies nor the jurisdiction between or among state and local agencies. TOBEQRA provides all involved agencies with the authority, following the filing of a final EIS and written findings statement, or pursuant to § 114-7D of this chapter to impose substantive conditions upon an action to ensure that the requirements of this chapter have been satisfied. The conditions imposed must be practicable and reasonably related to impacts identified in the EIS or the conditioned negative declaration.
C.
An application for agency funding or approval of a Type I or unlisted
action will not be complete until:
(1)
A negative declaration has been issued; or
(2)
Until a draft EIS has been accepted by the lead agency as satisfactory
with respect to scope, content and adequacy. When the draft EIS is
accepted, the TOBEQRA process will run concurrently with other procedures
relating to the review and approval of the action, if reasonable time
is provided for preparation, review and public hearings with respect
to the draft EIS.
D.
The lead agency will make every reasonable effort to involve project
sponsors, other agencies and the public in the TOBEQRA process. Early
consultations initiated by agencies can serve to narrow issues of
significance and to identify areas of controversy relating to environmental
issues, thereby focusing on the impacts and alternatives requiring
in-depth analysis in an EIS.
E.
Each agency involved in a proposed action has the responsibility
to provide the lead agency with information it may have that may assist
the lead agency in making its determination of significance, to identify
potentially significant adverse impacts in the scoping process, to
comment in a timely manner on the EIS if it has concerns which need
to be addressed and to participate, as may be needed, in any public
hearing. Interested agencies are strongly encouraged to make known
their views on the action, particularly with respect to their areas
of expertise and jurisdiction.
F.
No TOBEQRA determination of significance, EIS or findings statement
is required for actions which are Type II.
G.
Actions commonly consist of a set of activities or steps. The entire
set of activities or steps must be considered the action, whether
the agency decision-making relates to the action as a whole or to
only a part of it.
(1)
Considering only a part or segment of an action is contrary to the
intent of TOBEQRA. If a lead agency believes that circumstances warrant
a segmented review, it must clearly state in its determination of
significance, and any subsequent EIS, the supporting reasons for this
course of action and must demonstrate that such review is clearly
no less protective of the environment. Related actions should be identified
and discussed to the fullest extent possible.
(2)
If it is determined that an EIS is necessary for an action consisting of a set of activities or steps, only one draft and one final EIS need be prepared on the action, provided that the statement addresses each part of the action at a level of detail sufficient for an adequate analysis of the significant adverse environmental impacts. Except for a supplement to a generic environmental impact statement (see § 114-10D of this chapter), a supplement to a draft or final EIS will only be required in the circumstances prescribed in § 114-9A(7) of this chapter.
H.
Agencies must carry out the terms and requirements of this chapter
with minimum procedural and administrative delay, must avoid unnecessary
duplication of reporting and review requirements by providing, where
feasible, for combined or consolidated proceedings, and must expedite
all TOBEQRA proceedings in the interest of prompt review.
I.
Time periods in this chapter may be extended by mutual agreement
between a project sponsor and the lead agency, with notice to all
other involved agencies by the lead agency.
A.
The purpose of the list of Type I actions in this section is to identify,
for agencies, project sponsors and the public, those actions and projects
that are more likely to require the preparation of an EIS than unlisted
actions. All agencies are subject to this Type I list.
(1)
This Type I list is not exhaustive of those actions that an agency determines may have a significant adverse impact on the environment and that requires the preparation of an EIS. However, the fact that an action or project has been listed as a Type I action carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS. For all individual actions which are Type I or unlisted, the determination of significance must be made by comparing the impacts which may be reasonably expected to result from the proposed action with the criteria listed in § 114-7C of this chapter.
(2)
Agencies may adopt their own lists of additional Type I actions,
may adjust the thresholds to make them more inclusive, and may continue
to use previously adopted lists of Type I actions to complement those
contained in Section 617.4, (a) (2) (b), 6 NYCRR, Part 617, State
Environmental Quality Review (SEQR) or amendment thereof. Designation
of a Type I action by one involved agency requires coordinated review
by all involved agencies. An agency may not designate as Type I any
action identified as Type II in Section 617.5 of 6 NYCRR, Part 617,
SEQR or amendment thereof.
B.
The following actions are Type I if they are to be directly undertaken,
funded or approved by an agency:
(1)
The adoption of a municipality's land use plan, the adoption by any
agency of a comprehensive resource management plan or the initial
adoption of a municipality's comprehensive zoning regulations;
(2)
The adoption of changes in the allowable uses within any zoning district,
affecting 25 or more acres of the district;
(3)
The granting of a zoning change, at the request of an applicant,
for an action that meets or exceeds one or more of the thresholds
given elsewhere in this list;
(4)
The acquisition, sale, lease, annexation or other transfer of 100
or more contiguous acres of land by a state or local agency;
(5)
Construction of new residential units that meet or exceed the following
thresholds:
(a)
Fifty or more units not to be connected (at the commencement
of habitation) to existing community or public water and sewerage
systems, including sewage treatment works;
(b)
One hundred or more units to be connected (at the commencement
of habitation) to existing community or public water and sewerage
systems, including sewage treatment works;
(6)
Activities, other than the construction of residential facilities,
that meet or exceed any of the following thresholds; or the expansion
of existing nonresidential facilities by more than 50 percent of any
of the following thresholds:
(7)
Any unlisted action (unless the action is designed for the preservation
of the facility or site), occurring wholly or partially within, or
substantially contiguous to, any historic building, structure, facility,
site or district or prehistoric site that is listed on the National
Register of Historic Places, or that has been proposed by the New
York State Board on Historic Preservation for a recommendation to
the State Historic Preservation Officer for nomination for inclusion
in the National Register, or that is listed on the State Register
of Historic Places [The National Register of Historic Places is established
by 36 Code of Federal Regulation (CFR) Parts 60 and 63, 1994 (see
Section 617.17, of Part 617 State Environmental Quality Review)];
(8)
Any unlisted action, that exceeds 25% of any threshold in this section,
occurring wholly or partially within or substantially contiguous to
any publicly owned or operated parkland, recreation area or designated
open space, including any site on the Register of National Natural
Landmarks pursuant to 36 CFR Part 62, 1994 (see Section 617.17 of
Part 617, State Environmental Quality Review); or
(9)
Any unlisted action that exceeds a Type I threshold established by
an involved agency pursuant to Section 617.14 of 6 NYCRR, Part 617
State Environmental Quality Review.
A.
Actions or classes of actions identified in § 114-5C of this chapter are not subject to review under this chapter. These actions have been determined not to have a significant impact on the environment or are otherwise precluded from environmental review under the Environmental Conservation Law, Article 8. The actions identified in § 114-5C of this chapter apply to all agencies of the Town of Babylon.
B.
Each agency may adopt its own list of Type II actions to supplement the actions in § 114-5C of this chapter. No agency is bound by an action on another agency's Type II list. An agency that identifies an action as not requiring any determination or procedure under § 114-5C of this chapter is not an involved agency. Each of the actions on an agency Type II list must:
C.
The following actions are not subject to review under this chapter:
(1)
Maintenance or repair involving no substantial changes in an existing
structure or facility;
(2)
Replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, unless such action meets or exceeds any of the thresholds in § 114-4 of this chapter;
(3)
Agricultural farm management practices, including construction, maintenance
and repair of farm buildings and structures, and land use changes
consistent with generally accepted principles of farming;
(4)
Repaving of existing highways not involving the addition of new travel
lanes;
(5)
Street openings and right-of-way openings for the purpose of repair
or maintenance of existing utility facilities;
(6)
Maintenance of existing landscaping or natural growth;
(7)
Construction or expansion of a primary or accessory/appurtenant,
nonresidential structure or facility involving less than 4,000 square
feet of gross floor area and not involving a change in zoning or a
use variance and consistent with local land use controls, but not
radio communication or microwave transmission facilities;
(8)
Routine activities of educational institutions, including expansion
of existing facilities by less than 10,000 square feet of gross floor
area and school closings, but not changes in use related to such closings;
(9)
Construction or expansion of a single-family, a two-family or a three-family residence on an approved lot including provision of necessary utility connections as provided in § 114-5C(11) of this chapter and the installation, maintenance and/or upgrade of a drinking water well and a septic system;
(10)
Construction, expansion or placement of minor accessory/appurtenant
residential structures, including garages, carports, patios, decks,
swimming pools, tennis courts, satellite dishes, fences, barns, storage
sheds or other buildings not changing land use or density;
(11)
Extension of utility distribution facilities, including gas,
electric, telephone, cable, water and sewer connections to render
service in approved subdivisions or in connection with any action
on this list;
(12)
Granting of individual setback and lot line variances; variances associated with off-street parking relief up to, and including, 50 parking spaces deficient, in connection with an existing structure, site or facility located in a commercial and or industrial zone; unless such action meets or exceeds any of the thresholds in § 114-4 of this chapter.
(13)
Granting of an area variance(s) for a single-family, two-family
or three-family residence;
(14)
Public or private best forest management (silvicultural) practices
on less than 10 acres of land, but not including waste disposal, land
clearing not directly related to forest management, clear-cutting
or the application of herbicides or pesticides;
(15)
Minor temporary uses of land having negligible or no permanent
impact on the environment;
(16)
Installation of traffic control devices on existing streets,
roads and highways;
(17)
Mapping of existing roads, streets, highways, natural resources,
land uses and ownership patterns;
(18)
Information collection, including basic data collection and
research, water quality and pollution studies, traffic counts, engineering
studies, surveys, subsurface investigations and soils studies that
do not commit the agency to undertake, fund or approve any Type I
or unlisted action;
(19)
Official acts of a ministerial nature involving no exercise
of discretion, including building permits and historic preservation
permits where issuance is predicated solely on the applicant's compliance
or noncompliance with the relevant local building or preservation
code(s);
(20)
Routine or continuing agency administration and management,
not including new programs or major reordering of priorities that
may affect the environment;
(21)
Conducting concurrent environmental, engineering, economic,
feasibility and other studies and preliminary planning and budgetary
processes necessary to the formulation of a proposal for action, provided
those activities do not commit the agency to commence, engage in or
approve such action;
(22)
Collective bargaining activities;
(23)
Investments by or on behalf of agencies or pension or retirement
systems, or refinancing existing debt;
(24)
Inspections and licensing activities relating to the qualifications
of individuals or businesses to engage in their business or profession;
(25)
Purchase or sale of furnishings, equipment or supplies, including
surplus government property, other than the following: land, radioactive
material, pesticides, herbicides, or other hazardous materials;
(26)
License, lease and permit renewals, or transfers of ownership
thereof, where there will be no material change in permit conditions
or the scope of permitted activities;
(27)
Adoption of regulations, policies, procedures and local legislative
decisions in connection with any action on this list;
(28)
Engaging in review of any part of an application to determine
compliance with technical requirements, provided that no such determination
entitles or permits the project sponsor to commence the action unless
and until all requirements of this chapter have been fulfilled;
(29)
Civil or criminal enforcement proceedings, whether administrative
or judicial, including a particular course of action specifically
required to be undertaken pursuant to a judgment or order, or the
exercise of prosecutorial discretion;
(30)
Adoption of a moratorium on land development or construction;
(31)
Interpreting an existing code, rule or regulation;
(32)
Designation of local landmarks or their inclusion within historic
districts;
(33)
Emergency actions that are immediately necessary on a limited
and temporary basis for the protection or preservation of life, health,
property or natural resources, provided that such actions are directly
related to the emergency and are performed to cause the least change
or disturbance, practicable under the circumstances, to the environment.
Any decision to fund, approve or directly undertake other activities
after the emergency has expired is fully subject to the review procedures
of this chapter;
(34)
Actions undertaken, funded or approved prior to the effective
dates set forth in SEQR (see chapters 228 of the Laws of 1976, 253
of the Laws of 1977 and 460 of the Laws of 1978), except in the case
of an action where it is still practicable either to modify the action
in such a way as to mitigate potentially adverse environmental impacts,
or to choose a feasible or less environmentally damaging alternative,
the Commissioner may, at the request of any person, or on his own
motion, require the preparation of an environmental impact statement;
or, in the case of an action where the responsible agency proposed
a modification of the action and the modification may result in a
significant adverse impact on the environment, an environmental impact
statement must be prepared with respect to such modification;
(35)
Actions requiring a certificate of environmental compatibility
and public need under articles VII, VIII or X of the Public Service
Law and the consideration of, granting or denial of any such certificate;
(36)
Actions of the Legislature and the Governor of the State of
New York or of any court, but not actions of local legislative bodies,
except those local legislative decisions such as rezoning where the
local legislative body determines the action will not be entertained.
A.
Initial review of actions.
(1)
As early as possible in an agency's formulation of an action it proposes
to undertake, or as soon as an agency receives an application for
funding or for approval of an action, it must do the following:
(a)
Determine whether the action is subject to TOBEQRA. If the action
is a Type II action, the agency has no further responsibilities under
this chapter.
(b)
Determine whether the action involves a federal agency. If the action involves a federal agency, then the provisions of § 114-15 of this chapter apply.
(c)
Determine whether the action may involve one or more other agencies.
(d)
Make a preliminary classification of an action as Type I or unlisted, using the information available and comparing it with the thresholds set forth in §§ 114-4 and 114-5 of this chapter. Such preliminary classification will assist in determining whether a full EAF and coordinated review is necessary.
(2)
For Type I actions, a full EAF must be used to determine the significance
of such actions. The project sponsor must complete and sign and date
Part 1 of the full EAF, including a list of all other involved agencies
that the project sponsor has been able to identify, exercising all
due diligence. The lead agency is responsible for preparing Part 2
and, as needed, Part 3.
(3)
For unlisted actions, the short EAF must be used to determine the
significance of such actions. However, an agency may instead use the
full EAF for unlisted actions if the short EAF would not provide the
lead agency with sufficient information on which to base its determination
of significance. The lead agency may require other information necessary
to determine significance.
(4)
An agency may waive the requirement for an EAF if a draft EIS is
prepared or submitted. The draft EIS may be treated as an EAF for
the purpose of determining significance.
B.
Establishing lead agency.
(1)
When a single agency is involved, that agency will be the lead agency
when it proposes to undertake, fund or approve a Type I or unlisted
action that does not involve another agency.
(a)
If the agency is directly undertaking the action, it must determine
the significance of the action as early as possible in the design
or formulation of the action.
(b)
If the agency has received an application for funding or approval
of the action, it must determine the significance of the action within
20 calendar days of its receipt of the application, an EAF, or any
additional information reasonably necessary to make that determination,
whichever is later.
(2)
When more than one agency is involved:
(a)
For all Type I actions and for coordinated review of unlisted actions involving more than one agency, a lead agency must be established prior to a determination of significance. For unlisted actions where there will be no coordinated review, the procedures § 114-6B(4) of this chapter must be followed.
(b)
When an agency has been established as the lead agency for an action involving an applicant and has determined that an EIS is required, it must, in accordance with § 114-12B of this chapter, promptly notify the applicant and all other involved agencies, in writing, that it is the lead agency, that an EIS is required and whether scoping will be conducted.
(3)
Coordinated review.
(a)
When an agency proposes to directly undertake, fund or approve
a Type I action or an unlisted action undergoing coordinated review
with other involved agencies, it must, as soon as possible, transmit
Part 1 of the EAF completed by the project sponsor, or a draft EIS
and a copy of any application it has received to all involved agencies
and notify them that a lead agency must be agreed upon within 30 calendar
days of the date the EAF or draft EIS was transmitted to them. For
the purposes of this chapter, and unless otherwise specified by the
New York State Department of Environmental Conservation, all coordination
and filings with the New York State Department of Environmental Conservation
as an involved agency must be with the appropriate regional office
of the New York State Department of Environmental Conservation.
(b)
The lead agency must determine the significance of the action within 20 calendar days of its establishment as lead agency, or within 20 calendar days of its receipt of all information it may reasonably need to make the determination of significance, whichever occurs later, and must immediately prepare, file and publish the determination in accordance with § 114-12 of this chapter.
(c)
If a lead agency exercises due diligence in identifying all
other involved agencies and provides written notice of its determination
of significance to the identified involved agencies, then no involved
agency may later require the preparation of an EAF, a negative declaration
or an EIS in connection with the action. The determination of significance
issued by the lead agency following coordinated review is binding
on all other involved agencies.
(4)
Uncoordinated review for unlisted actions involving more than one
agency.
(a)
An agency conducting an uncoordinated review may proceed as if it were the only involved agency pursuant to § 114-6A of this chapter unless and until it determines that an action may have a significant adverse impact on the environment.
(b)
If an agency determines that the action may have a significant
adverse impact on the environment, it must then coordinate with other
involved agencies.
(c)
At any time prior to its final decision, an agency may have
its negative declaration superseded by a positive declaration by any
other involved agency.
(5)
Actions for which a lead agency cannot be agreed upon.
(a)
If, within the 30 calendar days allotted for establishment of
lead agency, the involved agencies are unable to agree upon which
agency will be the lead agency, any involved agency or the project
sponsor may request, by certified mail or other form of receipted
delivery to the Commissioner of the New York State Department of Environmental
Conservation, that a lead agency be designated. Simultaneously, copies
of the request must be sent by certified mail or other form of receipted
delivery to all involved agencies and the project sponsor. Any agency
raising a dispute must be ready to assume the lead agency functions
if such agency is designated by the Commissioner of the New York State
Department of Environmental Conservation.
(b)
The request must identify each involved agency's jurisdiction over the action, and all relevant information necessary for the Commissioner of the New York State Department of Environmental Conservation to apply the criteria in § 114-6B(5)(e) of this chapter, and state that all comments must be submitted to the Commissioner of the New York State Department of Environmental Conservation within 10 calendar days after receipt of the request.
(c)
Within 10 calendar days of the date a copy of the request is received by them, involved agencies and the project sponsor may submit to the Commissioner of the New York State Department of Environmental Conservation any comments they may have on the action. Such comments must contain the information indicated in § 114-6B(5)(b) of this chapter.
(d)
The Commissioner of the New York State Department of Environmental
Conservation must designate a lead agency within 20 calendar days
of the date of the request or any supplemental information the Commissioner
has required is received, based on a review of the facts, the criteria
below, and any comments received.
(e)
The Commissioner of the New York State Department of Environmental
Conservation will use the following criteria, in order of importance,
to designate lead agency:
[1]
Whether the anticipated impacts of the action being considered
are primarily of statewide, regional, or local significance (i.e.,
if such impacts are of primarily local significance, all other considerations
being equal, the local agency involved will be lead agency);
[2]
Which agency has the broadest governmental powers for investigation
of the impact(s) of the proposed action; and
[3]
Which agency has the greatest capability for providing the most
thorough environmental assessment of the proposed action.
[4]
Notice of the Commissioner of the New York State Department
of Environmental Conservation's designation of lead agency will be
mailed to all involved agencies and the project sponsor.
(6)
Reestablishment of lead agency.
(a)
Reestablishment of lead agency may occur by agreement of all
involved agencies in the following circumstances:
(b)
Disputes concerning reestablishment of lead agency for a supplement to a final EIS or generic EIS are subject to the designation procedures contained in § 114-6 B(5) of this chapter.
(c)
Notice of reestablishment of lead agency must be given by the
new lead agency to the project sponsor within 10 days of its establishment.
A.
The lead agency must determine the significance of any Type I or
unlisted action in writing in accordance with this section.
(1)
To require an EIS for a proposed action, the lead agency must determine
that the action may include the potential for at least one significant
adverse environmental impact.
(2)
To determine that an EIS will not be required for an action, the
lead agency must determine either that there will be no adverse environmental
impacts or that the identified adverse environmental impacts will
not be significant.
B.
For all Type I and unlisted actions the lead agency making a determination
of significance must:
(2)
Review the EAF, the criteria contained in § 114-7C of this chapter and any other supporting information to identify the relevant areas of environmental concern;
(3)
Thoroughly analyze the identified relevant areas of environmental
concern to determine if the action may have a significant adverse
impact on the environment; and
(4)
Set forth its determination of significance in a written form containing
a reasoned elaboration and providing reference to any supporting documentation.
C.
Criteria for determining significance.
(1)
To determine whether a proposed Type I or unlisted action may have
a significant adverse impact on the environment, the impacts that
may be reasonably expected to result from the proposed action must
be compared against the criteria in this section. The following list
is illustrative, not exhaustive. These criteria are considered indicators
of significant adverse impacts on the environment:
(a)
A substantial adverse change in existing air quality, groundwater
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;
(b)
The removal or destruction of large quantities of vegetation
or fauna; substantial interference with the movement of any 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;
(c)
The impairment of the environmental characteristics of a critical environmental area as designated pursuant to § 114-14G of this chapter;
(d)
The creation of a material conflict with a community's current
plans or goals as officially approved or adopted;
(e)
The impairment of the character or quality of important historical,
archeological, architectural, or aesthetic resources or of existing
community or neighborhood character;
(f)
A major change in the use of either the quantity or type of
energy;
(g)
The creation of a hazard to human health;
(h)
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;
(i)
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;
(j)
The creation of a material demand for other actions that would
result in one of the above consequences;
(k)
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
(2)
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 section.
(3)
For the purpose of determining whether an action may cause one of the consequences listed in § 114-7C of this chapter, the lead agency must consider reasonably related long-term, short-term, direct, indirect and cumulative impacts, including other simultaneous or subsequent actions which are:
(4)
The significance of a likely consequence (i.e., whether it is material,
substantial, large or important) should be assessed in connection
with:
D.
Conditioned negative declarations.
(1)
For unlisted actions involving an applicant, a lead agency may prepare
a conditioned negative declaration (CND) provided that it:
(a)
Has completed a full EAF;
(c)
Has imposed SEQR conditions pursuant to § 114-3B of this chapter that have mitigated all significant environmental impacts and are supported by the full EAF and any other documentation;
(d)
Has published a notice of a CND in the ENB and a minimum thirty-day
public comment period has been provided. The notice must state what
conditions have been imposed. An agency may also use its own public
notice and review procedures, provided the notice states that a CND
has been issued, states what conditions have been imposed and allows
for a minimum thirty-day public comment period; and
(2)
A lead agency must rescind the CND and issue a positive declaration
requiring the preparation of a draft EIS if it receives substantive
comments that identify:
(3)
The lead agency must require an EIS if requested by the applicant.
E.
Amendment of a negative declaration.
(1)
At any time prior to its decision to undertake, fund or approve an
action, a lead agency, at its discretion, may amend a negative declaration
when substantive:
F.
Rescission of negative declarations.
(1)
At any time prior to its decision to undertake, fund or approve an
action, a lead agency must rescind a negative declaration when substantive:
(2)
Prior to any rescission, the lead agency must inform other involved
agencies and the project sponsor and must provide a reasonable opportunity
for the project sponsor to respond.
A.
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 nonsignificant. Scoping is not required.
Scoping may be initiated by the lead agency or the project sponsor.
B.
If scoping is conducted, the project sponsor must submit a draft scope that contains the items identified in § 114-8F(1) through (5) of this chapter to the lead agency. The lead agency must provide a copy of the draft scope to all involved agencies, and make it available to any individual or interested agency that has expressed an interest in writing to the lead agency.
C.
If scoping is not conducted, the project sponsor may prepare a draft
EIS for submission to the lead agency.
D.
Involved agencies should provide written comments reflecting their
concerns, jurisdictions and information needs sufficient to ensure
that the EIS will be adequate to support their TOBEQRA findings. Failure
of an involved agency to participate in the scoping process will not
delay completion of the final written scope.
E.
Scoping must include an opportunity for public participation. The
lead agency may either provide a period of time for the public to
review and provide written comments on a draft scope or provide for
public input through the use of meetings, exchanges of written material,
or other means.
F.
The lead agency must provide a final written scope to the project
sponsor, all involved agencies and any individual that has expressed
an interest in writing to the lead agency within 60 days of its receipt
of a draft scope. The final written scope should include:
(1)
A brief description of the proposed action;
(2)
The potentially significant adverse impacts identified both in the
positive declaration and as a result of consultation with the other
involved agencies and the public, including an identification of those
particular aspect(s) of the environmental setting that may be impacted;
(3)
The extent and quality of information needed for the preparer to
adequately address each impact, including an identification of relevant
existing information, and required new information, including the
required methodology(ies) for obtaining new information;
(4)
An initial identification of mitigation measures;
(5)
The reasonable alternatives to be considered;
(6)
An identification of the information/data that should be included
in an appendix rather than the body of the draft EIS; and
(7)
Those prominent issues that were raised during scoping and determined
to be not relevant or not environmentally significant or that have
been adequately addressed in a prior environmental review.
G.
All relevant issues should be raised before the issuance of a final
written scope. Any agency or person raising issues after that time
must provide to the lead agency and project sponsor a written statement
that identifies:
H.
The project sponsor may incorporate information submitted consistent with § 114-8G of this chapter at its discretion. Any substantive information not incorporated into the draft EIS must be considered as public comment on the draft EIS.
I.
If the lead agency fails to provide a final written scope within
60 calendar days of its receipt of a draft scope, the project sponsor
may prepare and submit a draft EIS consistent with the submitted draft
scope.
A.
Environmental impact statement procedures.
(1)
The project sponsor or the lead agency, at the project sponsor's option, will prepare the draft EIS. If the project sponsor does not exercise the option to prepare the draft EIS, the lead agency will prepare it, cause it to be prepared or terminate its review of the action. A fee will be charged by the lead agency for the preparation or review of an EIS pursuant to § 114-13 of this chapter. When the project sponsor prepares the draft EIS, the document must be submitted to the lead agency.
(2)
The lead agency will use the final written scope, if any, and the
standards contained in this section to determine whether to accept
the draft EIS as adequate with respect to its scope and content for
the purpose of commencing public review. This determination must be
made in accordance with the standards in this section within 45 days
of receipt of the draft EIS.
(3)
When the lead agency has completed a draft EIS or when it has determined that a draft EIS prepared by a project sponsor is adequate for public review, the lead agency must prepare, file and publish a notice of completion of the draft EIS and file copies of the draft EIS in accordance with the requirements set forth in § 114-12 of this chapter. The minimum public comment period on the draft EIS is 30 days. The comment period begins with the first filing and circulation of the notice of completion.
(4)
When the lead agency has completed a draft EIS or when it has determined
that a draft EIS prepared by a project sponsor is adequate for public
review, the lead agency will determine whether or not to conduct a
TOBEQRA public hearing concerning the action. In determining whether
or not to hold a TOBEQRA hearing, the lead agency will consider the
degree of interest in the action shown by the public or involved agencies;
whether substantive or significant adverse environmental impacts have
been identified; the adequacy of the mitigation measures and alternatives
proposed; and the extent to which a public hearing can aid the agency
decision-making processes by providing a forum for, or an efficient
mechanism for the collection of, public comment. If a hearing is to
be held:
(a)
The lead agency must prepare and file a notice of hearing in accordance with § 114-12A and B of this chapter. Such notice may be contained in the notice of completion of the draft EIS. The notice of hearing must be published, at least 14 calendar days in advance of the public hearing, in a newspaper of general circulation in the area of the potential impacts of the action. For state agency actions that apply statewide, this requirement can be satisfied by publishing the hearing notice in the environmental notice bulletin (ENB) and the State Register;
(b)
The hearing will commence no less than 15 calendar days or no more than 60 calendar days after the filing of the notice of completion of the draft EIS by the lead agency pursuant to § 114-12B of this chapter. When a SEQR hearing is to be held, it should be conducted with other public hearings on the proposed action, whenever practicable; and
(c)
Comments will be received and considered by the lead agency
for no less than 30 calendar days from the first filing and circulation
of the notice of completion, or no less than 10 calendar days following
a public hearing at which the environmental impacts of the proposed
action are considered, whichever is later.
(5)
Except as provided in § 114-9A(5)(a) of this chapter, the lead agency must prepare or cause to be prepared and must file a final EIS, within 45 calendar days after the close of any hearing or within 60 calendar days after the filing of the draft EIS, whichever occurs later.
(a)
No final EIS need be prepared if the proposed action has been withdrawn or, on the basis of the draft EIS, and comments made thereon, the lead agency has determined that the action will not have a significant adverse impact on the environment. A negative declaration must then be prepared, filed and published in accordance with § 114-12 of this chapter.
(b)
The last date for preparation and filing of the final EIS may
be extended if it is determined that additional time is necessary
to prepare the statement adequately; or if problems with the proposed
action requiring material reconsideration or modification have been
identified.
(6)
When the lead agency has completed a final EIS, it must prepare, file and publish a notice of completion of the final EIS and file copies of the final EIS in accordance with § 114-12 of this chapter.
(7)
Supplemental EISs.
(a)
The lead agency may require a supplemental EIS, limited to the
specific significant adverse environmental impacts not addressed or
inadequately addressed in the EIS that arise from:
(c)
If a supplement is required, it will be subject to the full
environmental impact statement procedures and time frames of this
chapter.
B.
Environmental impact statement content.
(1)
An EIS must assemble relevant and material facts upon which an agency's
decision is to be made. It must analyze the significant adverse impacts
and evaluate all reasonable alternatives. EISs must be analytical
and not encyclopedic. The lead agency and other involved agencies
must cooperate with project sponsors who are preparing EISs by making
available to them information contained in their files relevant to
the EIS.
(2)
EISs must be clearly and concisely written in plain language that can be read and understood by the public. Within the framework presented in § 114-9B(5) of this chapter, EISs should address only those potential significant adverse environmental impacts that can be reasonably anticipated and/or have been identified in the scoping process. EISs should not contain more detail than is appropriate considering the nature and magnitude of the proposed action and the significance of its potential impacts. Highly technical material should be summarized and, if it must be included in its entirety, should be referenced in the statement and included in an appendix.
(3)
All draft and final EISs must be preceded by a cover sheet stating:
(a)
Whether it is a draft or final EIS;
(b)
The name or descriptive title of the action including the Town
of Babylon Planning Board application number, if applicable;
(c)
The location (county and town hamlet) and street address, if
applicable and Suffolk County tax map number of the action;
(d)
The name and address of the lead agency and the name, address
and telephone number of a person at the agency who can provide further
information;
(e)
The names of companies, individuals or organizations, address
and phone number that prepared any portion of the statement;
(f)
The date of its acceptance by the lead agency; and
(g)
In the case of a draft EIS, the date by which comments must
be submitted.
(4)
A draft or final EIS must have a table of contents following the
cover sheet and a precise summary which adequately and accurately
summarizes the statement.
(5)
The format of the draft EIS may be flexible; however, all draft EISs
must include the following elements:
(a)
A concise description of the proposed action, its purpose, public
need and benefits, including social and economic considerations;
(b)
A concise description of the environmental setting of the areas
to be affected, sufficient to understand the impacts of the proposed
action and alternatives;
(c)
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 only where
applicable and significant:
[1]
Reasonably related short-term and long-term impacts, cumulative
impacts and other associated environmental impacts;
[2]
Those adverse environmental impacts that cannot be avoided or
adequately mitigated if the proposed action is implemented;
[3]
Any irreversible and irretrievable commitments of environmental
resources that would be associated with the proposed action should
it be implemented;
[4]
Any growth-inducing aspects of the proposed action;
[5]
Impacts of the proposed action on the use and conservation of
energy (for an electric generating facility, the statement must include
a demonstration that the facility will satisfy electric generating
capacity needs or other electric systems needs in a manner reasonably
consistent with the most recent state energy plan);
[6]
Impacts of the proposed action on solid waste management and
its consistency with the state or locally adopted solid waste management
plan;
[7]
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 groundwater
protection area program as implemented pursuant to Article 55 or any
plan subsequently ratified and adopted pursuant to Article 57 of the
Environmental Conservation Law for Nassau and Suffolk counties;
(d)
A description of the mitigation measures;
(e)
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 are likely to occur in the reasonably foreseeable future, in
the absence of the proposed action. The range of alternatives may
also include, as appropriate, alternative:
[1]
Sites;
[2]
Technology;
[3]
Scale or magnitude;
[4]
Design;
[5]
Timing;
[6]
Use; and
[7]
Types of action. For private project sponsors, any alternative
for which no discretionary approvals are needed may be described.
Site alternatives may be limited to parcels owned by, or under option
to, a private project sponsor;
(f)
When the action is in an approved local waterfront revitalization
program area, with the local program policies;
(g)
A list of any underlying studies, reports, EISs and other information
obtained and considered in preparing the statement, including the
final written scope.
(6)
Additional information.
(a)
In addition to the analysis of significant adverse impacts required in § 114-9B(5)(c) of this chapter, if information about reasonably foreseeable catastrophic impacts to the environment is unavailable because the cost to obtain it is exorbitant, or the means to obtain it are unknown, or there is uncertainty about its validity, and such information is essential to an agency's TOBEQRA findings, the EIS must:
[1]
Identify the nature and relevance of unavailable or uncertain
information;
[2]
Provide a summary of existing credible scientific evidence,
if available; and
[3]
Assess the likelihood of occurrence, even if the probability
of occurrence is low, and the consequences of the potential impact,
using theoretical approaches or research methods generally accepted
in the scientific community.
(b)
This analysis would likely occur in the review of such actions
as an oil supertanker port, a liquid propane gas/liquid natural gas
facility, or the siting of a hazardous waste treatment facility. It
does not apply in the review of such actions as shopping malls, residential
subdivisions or office facilities.
(7)
A draft or final EIS may incorporate by reference all or portions
of other documents, including EISs that contain information relevant
to the statement. The referenced documents must be made available
for inspection by the public within the time period for public comment
in the same places where the agency makes available copies of the
EIS. When an EIS incorporates by reference, the referenced document
must be briefly described, its applicable findings summarized, and
the date of its preparation provided.
(8)
A final EIS must consist of the draft EIS, including any revisions
or supplements to it; copies or a summary of the substantive comments
received and their source (whether or not the comments were received
in the context of a hearing); and the lead agency's responses to all
substantive comments. The draft EIS may be directly incorporated into
the final EIS or may be incorporated by reference. The lead agency
is responsible for the adequacy and accuracy of the final EIS, regardless
of who prepares it. All revisions and supplements to the draft EIS
must be specifically indicated and identified as such in the final
EIS.
A.
Generic EISs may be broader and more general than site or project-specific
EISs and should discuss the logic and rationale for the choices advanced.
They may also include an assessment of specific impacts if such details
are available. They may be based on conceptual information in some
cases. They may identify the important elements of the natural resource
base as well as the existing and projected cultural features, patterns
and character. They may discuss in general terms the constraints and
consequences of any narrowing of future options. They may present
and analyze in general terms a few hypothetical scenarios that could
and are likely to occur. A generic EIS may be used to assess the environmental
impacts of:
(1)
A number of separate actions in a given geographic area which, if
considered singly, may have minor impacts, but if considered together
may have significant impacts; or
(2)
A sequence of actions contemplated by a single agency or individual;
or
(3)
Separate actions having generic or common impacts; or
(4)
An entire program or plan having wide application or restricting
the range of future alternative policies or projects, including new
or significant changes to existing land use plans, development plans,
zoning regulations or agency comprehensive resource management plans.
B.
In particular, agencies may prepare generic EISs on the adoption of a comprehensive plan prepared in accordance with Subdivision 4, § 28-a of the General City Law; Subdivision 4, § 272-a of the Town Law; or Subdivision 4, § 7-722 of the Village Law and the implementing regulations. Impacts of individual actions proposed to be carried out in conformance with these adopted plans and regulations and the thresholds or conditions identified in the generic EIS may require no or limited TOBEQRA review as described in § 114-10C and D of this chapter.
C.
Generic EISs and their findings should set forth specific conditions
or criteria under which future actions will be undertaken or approved,
including requirements for any subsequent TOBEQRA compliance. This
may include thresholds and criteria for supplemental EISs to reflect
specific significant impacts, such as site-specific impacts, that
were not adequately addressed or analyzed in the generic EIS.
D.
When a final generic EIS has been filed under this chapter:
(1)
No further TOBEQRA compliance is required if a subsequent proposed
action will be carried out in conformance with the conditions and
thresholds established for such actions in the generic EIS or its
findings statement;
(2)
An amended findings statement must be prepared if the subsequent
proposed action was adequately addressed in the generic EIS but was
not addressed or was not adequately addressed in the findings statement
for the generic EIS;
(3)
A negative declaration must be prepared if a subsequent proposed
action was not addressed or was not adequately addressed in the generic
EIS and the subsequent action will not result in any significant environmental
impacts;
(4)
A supplement to the final generic EIS must be prepared if the subsequent
proposed action was not addressed or was not adequately addressed
in the generic EIS and the subsequent action may have one or more
significant adverse environmental impacts.
E.
In connection with projects that are to be developed in phases or
stages, agencies should address not only the site-specific impacts
of the individual project under consideration, but also, in more general
or conceptual terms, the cumulative impacts on the environment and
the existing natural resource base of subsequent phases of a larger
project or series of projects that may be developed in the future.
In these cases, this part of the generic EIS must discuss the important
elements and constraints present in the natural and cultural environment
that may bear on the conditions of an agency decision on the immediate
project.
A.
Prior to the lead agency's decision on an action that has been the subject of a final EIS, it shall afford agencies and the public a reasonable time period (not less than 10 calendar days) in which to consider the final EIS before issuing its written findings statement. If a project modification or change of circumstance related to the project requires a lead or involved agency to substantively modify its decision, findings may be amended and filed in accordance with § 114-12B of this chapter.
B.
In the case of an action involving an applicant, the lead agency's
filing of a written findings statement and decision on whether or
not to fund or approve an action must be made within 30 calendar days
after the filing of the final EIS.
C.
No involved agency may make a final decision to undertake, fund, approve or disapprove an action that has been the subject of a final EIS, until the time period provided in § 114-11A of this chapter has passed and the agency has made a written findings statement. Findings and a decision may be made simultaneously.
D.
Findings must:
(1)
Consider the relevant environmental impacts, facts and conclusions
disclosed in the final EIS;
(2)
Weigh and balance relevant environmental impacts with social, economic
and other considerations;
(3)
Provide a rationale for the agency's decision;
(4)
Certify that the requirements of this chapter have been met;
(5)
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 mitigative measures
that were identified as practicable.
The following TOBEQRA documents must be prepared, filed, published
and made available as prescribed in this section.
A.
Preparation of documents.
(1)
Each negative declaration, positive declaration, notice of completion
of an EIS, notice of hearing and findings must state that it has been
prepared in accordance with Article 8 of the Environmental Conservation
Law and must contain the name and address of the lead agency; the
name, address and telephone number of a person who can provide additional
information; a brief description of the action; the SEQR classification;
and the location of the action.
(2)
The draft EIS or draft GEIS shall be posted on a publicly available
Internet website upon acceptance by the lead agency. The project sponsor
shall be responsible for any costs (if any) associated with the website
posting. The website posting of the DEIS or GEIS shall occur prior
to the lead agency acting on the proposal. The website posting of
the draft EIS or draft GEIS may be discontinued no less than one year
after all necessary permits have been issued by the federal, state
and local governments. The DEIS shall be available free of charge
on the publicly available Internet website. All printed filings and
public notices shall clearly indicate the address of the website at
which such filing is posted.
(3)
In addition to the information contained in § 114-12A(1) of this chapter:
(a)
A negative declaration must meet the requirements of § 114-7B of this chapter. A conditioned negative declaration must also identify the specific conditions being imposed that have eliminated or adequately mitigated all significant adverse environmental impacts and the period, not less than 30 calendar days, during which comments will be accepted by the lead agency.
(b)
A positive declaration must identify the potential significant
adverse environmental impacts that require the preparation of an EIS
and state whether scoping will be conducted.
(c)
A notice of completion must identify the type of EIS (draft,
final, supplemental, generic) and state where copies of the document
can be obtained. For a draft EIS the notice must include the time
period (not less than 30 calendar days from the date of filing or
not less than 10 calendar days following a public hearing on the draft
EIS) during which comments will be accepted by the lead agency.
(d)
A notice of hearing must include the time, date, place and purpose
of the hearing and contain a summary of the information contained
in the notice of completion. The notice of hearing may be combined
with the notice of completion of the draft EIS.
B.
Filing and distribution of documents.
(1)
A Type I negative declaration, conditioned negative declaration,
positive declaration, notice of completion of an EIS, EIS, notice
of hearing and findings must be filed with:
(2)
A negative declaration prepared on an unlisted action must be filed
with the lead agency.
(3)
All SEQR documents and notices, including but not limited to, EAFs,
negative declarations, positive declarations, scopes, notices of completion
of an EIS, EISs, notices of hearing and findings must be maintained
in files that are readily accessible to the public and made available
on request.
(4)
The lead agency may charge a fee to persons requesting documents
to recover its copying costs.
(5)
If sufficient copies of the EIS are not available to meet public
interest, the lead agency must provide an additional copy of the documents
to the local public library.
(6)
A copy of the EIS must be sent to the Department of Environmental
Conservation, Division of Environmental Permits, 625 Broadway, Albany,
NY 12233-1750.
C.
Publication of notices.
(1)
Notice of a Type I negative declaration, conditioned negative declaration,
positive declaration and completion of an EIS must be published in
the Environmental Notice Bulletin (ENB) in a manner prescribed by
the New York State Department of Environmental Conservation. Notice
must be provided by the lead agency directly to Environmental Notice
Bulletin, 625 Broadway, Albany, NY 12233-1750 for publication in the
ENB. The ENB is accessible on the New York State Department of Environmental
Conservation Internet web site at http://www.dec.state.ny.us.
(2)
A notice of hearing must be published, at least 14 days in advance
of the hearing date, in a newspaper of general circulation in the
area of the potential impacts of the action.
(3)
Agencies may provide for additional public notice by posting on sign
boards or by other appropriate means.
(4)
Notice of a negative declaration must be incorporated once into any
other subsequent notice required by law. This requirement can be satisfied
by indicating the SEQR classification of the action and the agency's
determination of significance.
A.
When an action subject to this chapter involves an applicant, the
lead agency may charge a fee to the applicant in order to recover
the actual costs of preparing, causing to be prepared or reviewing
the draft or final EIS. Scoping shall be considered part of the draft
EIS fee. Such costs shall not exceed the maximum amounts allowed pursuant
to 6 NYCRR Part 617, Section 617.13, State Environmental Quality Review
(SEQR). An applicant may not be charged a separate fee for both the
preparation and review of a draft EIS.
B.
When an applicant chooses not to prepare a draft EIS, the lead agency
shall provide the applicant, upon request, with an estimate of the
costs for preparing such statement calculated on the total cost of
the project for which funding or approval is sought.
C.
Fee schedule for review of EISs.
(1)
Residential projects. The fee schedule for review of EISs for residential
projects shall be as follows:
|
Fee Schedule for Residential Projects
| |
|---|---|
|
Residential Projects
|
Fee
|
|
Less than or equal to 1 acre and/or less than or equal to 5
units
|
$250
|
|
Greater than 1 acre but less than or equal to 2 acres and/or
greater than 5 units but fewer than or equal to 15 units
|
$500
|
|
Greater than 2 acres but less than or equal to 3 acres and/or
greater than 15 units but fewer than or equal to 25 units
|
$750
|
|
Greater than 3 acres but less than or equal to 5 acres and/or
greater than 25 units but fewer than or equal to 45 units
|
$1,500
|
|
Greater than 5 acres but less than or equal to 10 acres and/or
greater than 45 units but fewer than or equal to 95 units
|
$3,000
|
|
Greater than 10 acres but less than or equal to 50 acres and/or
greater than 95 units but fewer than or equal to 300 units
|
$5,000
|
|
Greater than 50 acres and/or 300 units
|
$7,500
|
|
NOTE: In the event that the number of units exceeds
the number of acres or the number of acres exceeds the number of units,
the higher number shall be used to compute the fee. For calculating
the acreage, a full acre or 43,560 square feet shall be used.
|
(2)
Industrial/commercial projects. The fee schedule for review of EISs
for industrial/commercial projects shall be as follows:
|
Fee Schedule for Industrial/Commercial Projects
| |
|---|---|
|
Industrial/Commercial Projects
|
Fee
|
|
Less than or equal to 1 acre and/or less than or equal to 18,000
square feet of gross floor area
|
$500
|
|
Greater than 1 acre but less than or equal to 2 acres and/or
greater than 18,000 square feet of gross floor area but less than
or equal to 34,000 square feet of gross floor area
|
$750
|
|
Greater than 2 acres but less than or equal to 3 acres and/or
greater than 34,000 square feet of gross floor area but less than
or equal to 52,000 square feet of gross floor area
|
$1,000
|
|
Greater than 3 acres but less than or equal to 5 acres and/or
greater than 52,000 square feet of gross floor area
|
$1,500
|
|
Greater than 5 acres but less than or equal to 10 acres and/or
greater than 92,000 square feet of gross floor area but less than
or equal to 200,000 square feet of gross floor area
|
$3,000
|
|
Greater than 10 acres and/or greater than 200,000 square feet
of gross floor area
|
$7,500
|
|
NOTE: In the event that the gross floor area exceeds
the number of acres or the number of acres exceeds the gross floor
area, the higher number shall be used to compute the fee. For calculating
the acreage, an acre or 43,560 square feet shall be used.
|
D.
Appeals procedure. When a dispute arises concerning fees charged
to an applicant by a lead agency, the applicant may make written request
to the lead agency setting forth reasons why it is felt that such
fees are inequitable. Upon receipt of a request, the chief fiscal
officer of the agency or his designee shall examine the agency record
and prepare a written response to the applicant setting forth reasons
why the applicant's claims are valid or invalid. Such appeal procedure
shall not interfere with or cause delay in the EIS process or prohibit
an action from being undertaken.
E.
The technical services of the Department may be made available to
other agencies on a fee basis reflecting the costs thereof.
A.
Article 8 of the Environmental Conservation Law requires all agencies
to adopt and publish, after a public hearing, any additional procedures
that may be necessary for them to implement SEQR. Until an agency
adopts these additional procedures, its implementation of SEQR will
be governed by the provisions of NYCRR Part 617 State Environmental
Quality Review (SEQR). If an agency rescinds its additional TOBEQRA
procedures, it will continue to be governed by Part 617 SEQR. The
agency must promptly notify the Commissioner of the New York State
Department of Environmental Conservation, and the Commissioner shall
publish a notice in the Environmental Notice Bulletin (ENB), of the
adoption of additional procedures or the rescission of agency TOBEQRA
procedures.
B.
To the greatest extent possible, the procedures prescribed in NYCRR
Part 617 State Environmental Quality Review (SEQR) must be incorporated
into existing agency procedures. An agency may by local law, code,
ordinance, executive order, resolution or regulation vary the time
periods established in Part 617 SEQR for the preparation and review
of TOBEQRA documents, and for the conduct of public hearings, in order
to coordinate the TOBEQRA environmental review process with other
procedures relating to the review and approval of actions. Such time
changes must not impose unreasonable delay. Individual agency procedures
to implement Part 617 SEQR must be no less protective of environmental
values, public participation and agency and judicial review than the
procedures contained in the most current version of Part 617 SEQR.
This includes any updates or changes to these regulations by the New
York State Department of Environmental Conservation. Part 617 SEQR
supersedes any TOBEQRA provisions promulgated or enacted by an agency
that are less protective of the environment.
C.
Agencies may find it helpful to seek the advice and assistance of
other agencies, groups and persons on TOBEQRA matters, including the
following:
(1)
Advice on preparation and review of EAFs;
(2)
Recommendations on the significance or nonsignificance of actions;
(3)
Preparation and review of EISs and recommendations on the scope,
adequacy, and contents of EISs;
(4)
Preparation and filing of SEQR notices and documents;
(5)
Conduct of public hearings; and
(6)
Recommendations to decision makers.
D.
Agencies are strongly encouraged to enter into cooperative agreements
with other agencies regularly involved in carrying out or approving
the same actions for the purposes of coordinating their procedures.
E.
All agencies are subject to the lists of Type I and Type II actions contained in §§ 114-4 and 114-5 of this chapter and must apply the criteria provided in § 114-7C of this chapter for review of all potential actions. In addition, agencies may adopt their own lists of Type I actions, in accordance with Section 617.4 of Part 617, State Environmental Quality Review (SEQR) and their own lists of Type II actions in accordance with Section 617.5 of Part 617 SEQR.
F.
Every agency that adopts, has adopted or amends TOBEQRA procedures
must, after public hearing, file them with the Commissioner of the
New York State Department of Environmental Conservation, who will
maintain them to serve as a resource for agencies and interested persons.
The Commissioner of the New York State Department of Environmental
Conservation will provide notice in the ENB of such procedures upon
filing. All agencies that have promulgated their own TOBEQRA procedures
must review and bring them into conformance with NYCRR Part 617 State
Environmental Quality Review (SEQR). Until agencies do so, their procedures,
where inconsistent or less protective, are superseded by Part 617,
SEQR.
G.
A local agency may designate a specific geographic area within its
boundaries as a critical environmental area (CEA). A state agency
may also designate as a CEA a specific geographic area that is owned
or managed by the state or is under its regulatory authority. Designation
of a CEA must be preceded by written public notice and a public hearing.
The public notice must identify the boundaries and the specific environmental
characteristics of the area warranting CEA designation.
(1)
To be designated as a CEA, an area must have an exceptional or unique
character covering one or more of the following:
(a)
A benefit or threat to human health;
(b)
A natural setting (e.g., fish and wildlife habitat, forest and
vegetation, open space and areas of important aesthetic or scenic
quality);
(c)
Agricultural, social, cultural, historic, archaeological, recreational,
or educational values; or
(d)
An inherent ecological, geological or hydrological sensitivity
to change that may be adversely affected by any change.
(2)
Notification that an area has been designated as a CEA must include
a map at an appropriate scale to readily locate the boundaries of
the CEA, the written justification supporting the designation, and
proof of public hearing and must be filed with:
(a)
The Commissioner of the New York State Department of Environmental
Conservation;
(b)
The appropriate regional office of the New York State Department
of Environmental Conservation; and
(c)
Any other agency regularly involved in undertaking, funding
or approving actions in the municipality in which the area has been
designated.
(3)
This designation shall take effect 30 days after filing with the
New York State Department of Environmental Conservation. Each designation
of a CEA must be published in the ENB by the New York State Department
of Environmental Conservation. The New York State Department of Environmental
Conservation will serve as a clearinghouse for information on CEAs.
A.
When a draft and final EIS for an action has been duly prepared under the National Environmental Policy Act of 1969, an agency has no obligation to prepare an additional EIS under this chapter, provided that the federal EIS is sufficient to make findings under § 114-11 of this chapter. However, except in the case of Type II actions listed in § 114-5 of this chapter, no involved agency may undertake, fund or approve the action until the federal final EIS has been completed and the involved agency has made the findings prescribed in § 114-11 of this chapter.
B.
Where a finding of no significant impact (FONSI) or other written
threshold determination that the action will not require a federal
impact statement has been prepared under the National Environmental
Policy Act of 1969, the determination will not automatically constitute
compliance with TOBEQRA. In such cases agencies remain responsible
for compliance with TOBEQRA.
C.
In the case of an action involving a federal agency for which either
a federal FONSI or a federal draft and final EIS has been prepared,
except where otherwise required by law, a final decision by a federal
agency will not be controlling on any state or local agency decision
on the action, but may be considered by the agency.
When a project sponsor submits a completed EAF, draft or final
EIS, or otherwise provides information concerning the environmental
impacts of a proposed project, the project sponsor may request, consistent
with the Freedom of Information Law (FOIL), Article 6 of the Public
Officers Law, that specifically identified information be held confidential.
Prior to divulging any such information, the agency must notify the
applicant of its determination of whether or not it will hold the
information confidential.
The following referenced documents have been filed with the
New York State Department of State. The documents are available from
the Superintendent of Documents, United States Government Printing
Office, Washington, DC 20402, and for inspection and copying at the
Department of Environmental Conservation, 625 Broadway, Albany, New
York 12233-1750.
If any provision of this chapter or its application to any person
or circumstance is determined to be contrary to law by a court of
competent jurisdiction, such determination shall not affect or impair
the validity of the other provisions of this chapter or the application
to other persons, and the remedies listed in this chapter are not
exclusive of any other remedies available under any applicable federal,
state or local law, and it is within the discretion of the authorized
enforcement agency to seek cumulative remedies.
This chapter shall be in full force and effect immediately after
its final passage and adoption and filing with the New York State
Secretary of State. This chapter shall also be filed with the Commissioner
of the New York State Department of Environmental Conservation. All
prior laws and parts of law in conflict with this chapter are hereby
repealed.
