[HISTORY: Adopted by the Common Council of
the City of Ithaca 9-5-1990 by Ord. No. 90-13; amended in its entirety 12-3-2003 by Ord. No.
2003-22. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Landmarks Preservation Commission — See Ch. 73.
Design review — See Ch. 160.
Flood damage prevention — See Ch. 186.
Landmarks preservation — See Ch. 228.
Site plan review — See Ch. 276.
Stormwater management and erosion and sediment control — See Ch. 282.
Subdivision of land — See Ch. 290.
Watershed — See Ch. 320.
Zoning — See Ch. 325.
A.
This chapter is adopted pursuant to § 8-0113
of the Environmental Conservation Law to implement the provisions
of the State Environmental Quality Review Act (SEQR).
B.
In adopting SEQR, it was the State Legislature'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 SEQR and CEQR is to incorporate
the consideration of environmental factors into the existing planning,
review and decisionmaking processes of state, regional and local government
agencies at the earliest possible time. To accomplish this goal, SEQR
and CEQR require that all agencies determine whether the actions they
directly undertake, fund or approve may have a significant impact
on the environment and, if it is determined that the action may have
a significant adverse impact, prepare or request an environmental
impact statement.
D.
It was the intention of the Legislature and is the
intention of the Ithaca City Common Council that the protection and
enhancement of the environment and 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 decisionmaking processes of state, regional and local agencies.
It is not the intention of SEQR or CEQR that environmental factors
be the sole consideration in decision making.
E.
This chapter is intended to provide a citywide regulatory
framework for the implementation of CEQR by all local agencies. It
includes:
(1)
Procedural requirements for compliance with the law.
(2)
Provisions for coordinating multiple agency environmental reviews through a single lead agency (§ 176-6 of this chapter).
(3)
Criteria to determine whether a proposed action may have a significant adverse impact on the environment (§ 176-7 of this chapter).
As used in this chapter, unless the context
otherwise requires, the following terms shall have the meanings indicated:
Article 8 of the Environmental Conservation Law (SEQR).
Includes:
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 City 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.
Any combination of the above.
A state or local agency, including the Common Council and
any City department, agency, board, public benefit corporation, public
authority or commission. The terms "agency" and "city agency" are
used interchangeably in this chapter.
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 municipal government of the City of Ithaca.
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 § 176-7 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 that make the area environmentally important. (See § 176-14E of this chapter.)
The New York State Department of Environmental Conservation.
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 which commits an agency to a course of action
that may affect the environment.
The physical conditions which will be affected by a proposed
action, including land, air, water, minerals, flora, fauna, noise,
resources of agricultural, archaeological, 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 an action. A properly completed EAF shall contain enough information to describe the proposed action, its location, its purpose and its potential impacts on the environment. The model full and short EAF's contained in Appendixes A and C of § 176-19 of this chapter may be modified by the Common Council to better serve it in implementing CEQR, provided that the scope of the modified form is as comprehensive as the model.
A written draft or final document prepared in accordance with §§ 176-9 and 176-14 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 decisionmaking process. A draft EIS is the initial statement prepared by either the project sponser or the lead agency and circulated for review and comment. An EIS may also be generic in accordance with § 176-10 of this chapter, supplemental in accordance with paragraph § 176-9A(7) of this chapter, or federal in accordance with § 176-15 of this chapter.
The weekly publication of the Department published pursuant
to § 3-0306 of the Environmental Conservation Law.
A written statement prepared by each involved agency, in accordance with § 176-11 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 CEQR 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.
Any change or 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.
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 CEQR 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.
An action performed upon a given statement of facts in a
prescribed manner imposed by law without the exercise of any judgment
or discretion as to the propriety of the action, 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 § 176-2. Negative declarations must be prepared and filed in accordance with § 176-12A and 176-12B of this chapter.
A permit, license, lease, certificate or other entitlement
for use or permission to act that may be granted or given 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 earth work; 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 and filed in accordance with § 176-12A and 176-12B 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 which 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 which is listed in § 176-5 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 CEQR adopted pursuant to § 176-14 of this chapter. 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 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 CEQR
procedures.
A.
No agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of CEQR. A project sponsor may not commence any physical alteration related to an action until the provisions of CEQR have been complied with, except as provided under § 176-5C(18), (21) or (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 until a final EIS has been filed, except as provided under § 176-9A(5)(a) of this chapter.
B.
City environmental quality review does not change the existing jurisdiction of agencies. City environmental quality review provides all involved agencies with the authority, following the filing of a final EIS and written findings statement or pursuant to § 176-7D 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 shall not be complete until:
(1)
A negative declaration has been issued; or
(2)
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 CEQR 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
CEQR 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 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 which 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 CEQR 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 decisionmaking 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 CEQR. 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 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 § 176-10D(4) of this chapter), a supplement to a draft or final EIS will only be required in the circumstances prescribed in § 176-9A(7) of this chapter.
H.
Agencies shall 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 shall expedite all CEQR 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.
J.
The Parks, Recreation, and Natural Resources Commission has no specific
responsibility for implementing the Environmental Quality Review Ordinance,[1] except that its input and assistance shall be solicited
for all actions for which a short or long environmental assessment
form has been prepared and for all actions for which a positive declaration
is made or a draft environmental impact statement is prepared.
[Amended 7-5-2017 by Ord. No.
2017-15]
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. This Type I list is not exhaustive of those actions that an agency determines may have a significant adverse impact on the environment and require 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 § 176-7C of this chapter.
B.
The following actions are Type I if they are to be
directly undertaken, funded or approved by an agency:
(1)
The construction of any of the following:
(a)
Heliports.
(b)
Construction or expansion of greater than 10,000
square feet of a public institution, such as hospitals, schools and
buildings within institutions of higher learning, correction facilities
and major office centers (or demolition of any of the foregoing).
(c)
New road or highway sections.
(d)
Parking facilities or other facilities with
an associated parking area for 100 or more cars.
(e)
Any facility, development or project which,
when complete, would generate truck traffic (three-axle or more) of
more than 10 vehicles per eight-hour period per day.
(f)
Incinerators operating at a refuse-charging
rate exceeding 2.5 tons of refuse per twenty-four-hour day
(g)
Any facility, development or project which would
result in the generation, transport or storage of nuclear materials.
(h)
Any unlisted action (with the exception of minor
subdivisions) occurring wholly or partially within 100 feet of any
of the following:
[1]
Freshwater wetlands, as defined in Article 24
in the Environmental Conservation Law.
[2]
Fall Creek (including its associated gorge and
rim area between the outlet of Beebe Lake and Lake Street), Six Mile
Creek (including its associated gorge and rim area between the southern
boundary of the City and Aurora Street), Cascadilla Creek (including
its associated gorge and rim area between Campus Road and Linn Street),
Linderman Silver Creek (also known as "Cliff Park Brook," including
its associated gorge and rim area) and the Cayuga Inlet, along their
courses within City boundaries.
[3]
Unique natural areas as adopted by the Common
Council.
[4]
Any historic building, structure, facility,
site or district or prehistoric site 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 said National
Register or that is listed on the State Register of Historic Places
or that is designated under the City of Ithaca Landmarks Preservation
Ordinance,[1] provided that this item does not include any otherwise
unlisted action that is designed for the preservation of the facility
or site.
(i)
Any facility, development or project which would
generate more than 500 vehicle trips per any eight-hour period per
day.
(j)
Any industrial facility (or demolition thereof).
(l)
Any other type of residential or lodging facility,
dormitory, fraternity, sorority (if residential must be greater than
10,000), rooming or boarding house, tourist home or facility, motel,
hotel or boatel of 15 or more sleeping units, as those terms are defined
in the Zoning Law.
[Amended 3-3-2004 by Ord. No. 2004-02]
(m)
Bridges (or demolition thereof).
(n)
Any facility with more than 50,000 square feet
of gross floor area.
(2)
Clear-cutting or removal of vegetation from more than
1/2 acre.
(3)
The adoption of a land use plan, the adoption by any
agency of a comprehensive resource management plan or the initial
adoption of comprehensive zoning regulations.
(4)
The acquisition, lease, annexation, transfer or sale
by a public agency of more than 2.5 contiguous acres of land.
(5)
Any project or action which 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 62 (1986).
(6)
The granting of any 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.
(7)
The adoption of zoning map changes and changes in
the allowable uses within any zoning district affecting two or more
acres of the district.
(8)
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%
of the following thresholds:
A.
Actions or classes of actions identified in Subsection C of this section 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 Environmental Conservation Law, Article 8. The actions identified in Subsection C of this section apply to all agencies.
B.
Each agency may adopt its own list of Type II actions to supplement the actions in Subsection C of this section. Each of the actions on the Type II list must:
[Amended 3-3-2004 by Ord. No. 2004-02]
C.
The following actions (and any action listed in § 617.5
of SEQR, as amended) 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 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 § 176-4 of this chapter.
(3)
Repaving of existing highways not involving the addition
of new travel lanes.
(4)
Street openings and right-of-way openings for the
purpose of repair or replacement or maintenance of existing utility
facilities.
(5)
Maintenance of existing landscaping or natural growth.
(6)
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.
(7)
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.
(8)
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 Subsection C(10).
(9)
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.
(10)
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.
(11)
Granting of individual setback and lot line variances.
(12)
Granting of an area variance(s) for a single-family,
two-family or three-family residence.
(13)
Public or private best forest management (silvicultural)
practices on less than five 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.
(14)
Minor temporary uses of land having negligible or
no permanent impact on the environment.
(15)
Installation of traffic control devices on existing
streets, roads and highways.
(16)
Mapping of existing roads, streets, highways, natural
resources, land uses and ownership patterns.
(17)
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.
(18)
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).
(19)
Routine or continuing agency administration and management,
not including new programs or major reordering of priorities that
may affect the environment.
(20)
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.
(21)
Collective bargaining activities.
(22)
Investments by or on behalf of agencies or pension
or retirement systems, or refinancing of existing debt.
(23)
Inspections and licensing activities relating to the
qualifications of individuals or businesses to engage in their business
or profession.
(24)
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.
(25)
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.
(26)
Adoption of regulations, policies, procedures and
local legislative decisions in connection with any action on this
list.
(27)
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.
(28)
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.
(29)
Adoption of a moratorium on land development or construction.
(30)
Interpreting an existing code, rule, or regulation.
(31)
Designation of local landmarks or their inclusion
within historic districts.
(32)
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.
(33)
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/her 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 environmental impact on the environment, an environmental impact statement must be prepared with respect to such modification.
(34)
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.[1]
[1]
Editor's Note: Former Subsection C(35), pertaining
to Adirondack Park Agency jurisdiction, and (36), pertaining to actions
of the state legislature and governor, which immediately followed
this section, was repealed 3-3-2004 by Ord. No. 04-2.
A.
Initial review of actions. 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 a funding or approval
action, it shall do the following:
(1)
Determine whether the action is subject to CEQR. If
the action is a Type II action, the agency shall have no further responsibilities
under this chapter.
(2)
Determine whether the action involves a federal agency. If the action involves a federal agency, the provisions of § 176-15 of this chapter apply.
(3)
Determine whether the action may involve one or more
other agencies.
(4)
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 § 176-4 of this chapter. Such preliminary classification will assist in determining whether a full EAF and coordinated review is necessary.
(a)
For Type I actions, a full EAF (see § 176-19, Appendix A, of this chapter[1]) must be used to determine the significance of such actions.
The project sponsor must complete Part 1 of the full EAF, including
a list of all other involved agencies which 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.
[1]
Editor's Note: Said appendix is on file and
available for inspection in the office of the City Clerk.
(b)
For unlisted actions, the short EAF (see § 176-19, Appendix C, of this chapter[2]) 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.
[2]
Editor's Note: Said appendix is on file and
available for inspection in the office of the City Clerk.
(c)
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.
(d)
Any City agency receiving or filling out an environmental assessment
form shall, within five days, provide a copy of the document to the
Chairperson of the Parks, Recreation, and Natural Resources Commission
and to the Common Council liaisons to the Parks, Recreation, and Natural
Resources Commission for their comments and recommendations.
[Amended 7-5-2017 by Ord. No.
2017-15]
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.
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. 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
and 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 in § 176-6D 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 § 176-12 of this chapter, promptly notify the applicant and all other involved agencies, in writing, that it is the lead agency, and that and EIS is required and whether scoping will be conducted.
C.
Coordinated review.
(1)
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 Department, all coordination and filings with the Department
as an involved agency must be with the appropriate regional office
of the Department.
(2)
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 shall immediately prepare, file and publish the determination in accordance with § 176-12 of this chapter.
(3)
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.
D.
Uncoordinated review for unlisted actions involving
more than one agency.
(1)
An agency conducting an uncoordinated review may proceed as if it were the only involved agency pursuant to Subsection A of this section unless and until it determines that an action may have a significant adverse impact on the environment.
(2)
If an agency determines that the action may have a
significant adverse impact on the environment, it must coordinate
with other involved agencies.
(3)
At any time prior to its agency's final decision,
an agency may have its negative declaration superseded by a positive
declaration by any other involved agency.
E.
Actions for which a lead agency cannot be agreed upon.
If, within the 30 calendar days allotted for establishment of a 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, 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.
(1)
The request must identify each involved agency's jurisdiction over the action and all relevant information necessary for the Commissioner to apply the criteria in Subsection E(4) of this section, and state that all comments must be submitted to the Commissioner within 10 calendar days after receipt of the request.
(2)
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 any comments they may have on the action. Such comments must contain the information indicated in Subsection E(1) of this section.
(3)
The Commissioner must designate a lead agency within
20 calendar days of the date 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.
(4)
The Commissioner will use the following criteria,
in order of importance, to designate a lead agency:
(a)
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);
(b)
Which agency has the broadest governmental powers
for investigation of the impact(s) of the proposed action; and
(c)
Which agency has the greatest capability for
providing the most thorough environmental assessment of the proposed
action.
(5)
Notice of the Commissioner's designation of lead agency
will be mailed to all involved agencies and the project sponsor.
F.
Reestablishment of lead agency.
(1)
Reestablishment of a lead agency may occur by agreement
of all involved agencies in the following circumstances:
(2)
Disputes concerning reestablishment of a lead agency for a supplement to a final EIS or generic EIS are subject to the designation procedures contained in § 176-6E of this chapter.
(3)
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 environmental
effects 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 Subsection C of this section 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, ground or surface water quality or quantity, traffic or noise
levels; a substantial increase in solid waste production; or 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 § 176-14E of this chapter;
(d)
The creation of a material conflict with the
City's current plans or goals as officially approved or adopted;
(e)
The impairment of the character or quality of
important historical, archaeological, 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 which 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 which,
when considered together, result in a substantial adverse impact on
the environment; or
(l)
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 which, when considered cumulatively,
would meet one or more of the criteria in this section.
(2)
For the purpose of determining whether an action may cause one of the consequences listed in Subsection C(1) of this section, the lead agency must consider reasonably related long-term, short-term, direct, indirect, and cumulative impacts, including other simultaneous or subsequent actions which are:
(3)
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 of significance
(CND), provided that it:
(a)
Has completed a full EAF;
(c)
Has imposed CEQR conditions pursuant to § 176-3B 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 that
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 § 176-8F(1) through (5) of this section 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 CEQR 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 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 not to be 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 § 176-8G of this section into the draft EIS 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 may be charged by the lead agency for preparation or review of an EIS pursuant to § 176-13 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 § 176-12 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 public hearing concerning the action. In determining
whether or not to hold a CEQR 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 decisionmaking 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 § 176-12A 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.
(b)
The hearing will commence no less than 15 calendar days or not more than 60 calendar days after the filing of the notice of completion of the draft EIS by the lead agency pursuant to § 176-12B of this chapter. When a CEQR hearing is to be held, it should be conducted with other public hearings on the proposed action whenever practicable.
(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 not 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 (a) of this section, the lead
agency shall 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:
[1]
The proposed action has been withdrawn; or
[2]
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 this
chapter.
(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 § 176-12 of this chapter.
(7)
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. EIS's must
be analytical and not encyclopedic. The lead agency and other involved
agencies must cooperate with project sponsors who are preparing EIS's
by making available to them information contained in their files relevant
to the EIS.
(2)
EIS's must be clearly and concisely written in plain language that can be read and understood by the public. Within the framework presented in § 176-9B(5) of this section, EIS's should address only those potential significant, adverse environmental impacts that can be reasonably anticipated and/or have been identified in the scoping process. EIS's 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 EIS's 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;
(c)
The location (county and town, village or city)
and street address, if applicable, of the action;
(d)
The name and address of the lead agency and
the name and telephone number of a person at the agency who can provide
further information;
(e)
The names of individuals or organizations that
prepared any portion of the statement;
(f)
The date of its acceptance by the 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 EIS's 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 effects 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]
A discussion of the effects 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); and
[6]
Impacts of the proposed action on solid waste
management and its consistency with the state or locally adopted solid
waste management plan.
(d)
A description of 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 should 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)
A list of any underlying studies, reports, EIS's
and other information obtained and considered in preparing the statement,
including the final written scope.
(6)
In addition to the analysis of significant adverse impacts required in § 176-9B(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 CEQR findings, the EIS must:
(a)
Identify the nature and relevance of unavailable
or uncertain information;
(b)
Provide a summary of existing credible scientific
evidence, if available; and
(c)
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. This analysis would
likely occur in the review of such actions as a liquid propane gas/liquid
natural gas facility or the siting of a hazardous waste treatment
facility. It should 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 EIS's 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
shall 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
shall be specifically indicated and identified as such in the final
EIS.
A.
Generic EIS's may be broader and more general than
site or project specific EIS's 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 which, if considered
singly, may have minor impacts but, if considered together, may have
significant impacts;
(2)
A sequence of actions, contemplated by a single agency
or individual;
(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 EIS's on the adoption of a comprehensive plan prepared in accordance with Subdivision 4, § 28-a of the General City 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 CEQR review as described in Subsections C and D of this section.
C.
Generic EIS's and their findings should set forth
specific conditions or criteria under which future actions will be
undertaken or approved, including requirements for any subsequent
CEQR compliance. This may include thresholds and criteria for supplemental
EIS's 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 CEQR 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; and
(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 which 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 statements. If a project modification or change of circumstances related to the project requires a lead or involved agency to substantially modify its decision, findings may be amended and filed in accordance with § 176-12B 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 § 176-11A 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; and
(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 CEQR documents shall 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 Chapter 176 of the Code of the City of Ithaca 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 CEQR classification; and the location of the action.
(2)
In addition to the information contained in Subsection A(1) of this section:
(a)
A negative declaration must meet the requirement of § 176-7C and D 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 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 CEQR documents and notices, including but not
limited to EAF's, negative declarations, positive declarations, scopes,
notices of completion of an EIS, EIS's, 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 Department. Notice must be provided by the
lead agency directly to Environmental Notice Bulletin, Room 538, 625
Broadway, Albany, NY 12233-1750 for publication in the ENB. The ENB
is accessible on the Department's 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. For state agency
actions that apply statewide, this requirement can be satisfied by
publishing the hearing notice in the ENB and the State Register.
(3)
Agencies may provide for additional public notice
by posting on signboards 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 CEQR 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 or reviewing the draft EIS. The fee may include a charge back to recover a proportion of the lead agency's actual costs expended for the preparation of a generic EIS prepared pursuant to § 176-10 of this chapter for the geographic area where the applicant's project is located. The charge back may be based on the percentage of the remaining developable land or the percentage of road frontage to be used by the project, or on any other reasonable methods. The fee must not exceed the amounts allowed under Subsections B through D of this section. If the lead agency charges for preparation of a draft and/or final EIS, it may not also charge for review; if it charges for review of a draft and/or final EIS, it may not also charge for preparation. Scoping shall be considered part of the draft EIS for purposes of determining a CEQR fee; no fee may be charged for preparation of an EAF or determination of significance.
B.
For residential projects, the total project value
shall be calculated on the actual purchase price of the land or the
fair market value of the land (determined by assessed valuation divided
by equalization rate), whichever is higher, plus the cost of all required
site improvements, not including the cost of buildings and structures,
as determined with reference to a current cost data publication in
common use. In the case of such projects, the fee charged by an agency
may not exceed 2% of the total project value.
C.
For nonresidential construction projects, the total
project value shall be calculated on the actual purchase price of
the land or the fair market value of the land (determined by assessed
valuation divided by equalization rate) whichever is higher, plus
the cost of supplying utility service to the project, the cost of
site preparation and the cost of labor and material as determined
with reference to a current cost data publication in common usage.
In the case of such projects, the fee charged may not exceed 1/2 of
1% of the total project value.
D.
For projects involving the extraction of minerals,
the total project value shall be calculated on the cost of site preparation
for mining. "Site preparation cost" shall mean the cost of clearing
and grubbing and removal of overburden for the entire area to be mined
plus the cost of utility services and construction of access roads.
Such costs are determined with reference to a current cost data publication
in common use. The fee charged by the agency may not exceed 1/2 of
1% of the total project value. For those costs to be incurred for
phases occurring three or more years after issuance of a permit, the
total project value shall be determined using a present value calculation.
E.
Where 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 value of the project for which funding or approval is
sought.
F.
Appeals procedure. When a dispute arises concerning
fees charged to an applicant by a lead agency, the applicant may make
a written request to the 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/her 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.
G.
The technical services of the Department may be made
available to other agencies on a fee basis, reflecting the costs thereof,
and the fee charged to any applicant pursuant to this section may
reflect such costs.
A.
Agencies may find it helpful to seek the advice and
assistance of other agencies, groups and persons on CEQR matters,
including the following:
(1)
Advice on preparation and review of EAF's;
(2)
Recommendations on the significance or nonsignificance
of actions;
(3)
Preparation and review of EIS's and recommendations
on the scope, adequacy, and contents of EIS's;
(4)
Preparation and filing of SEQR notices and documents;
(5)
Conduct of public hearings; and
(6)
Recommendations to decisionmakers.
B.
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.
C.
All agencies are subject to the lists of Type I and Type II actions contained in this chapter, and must apply the criteria provided in § 176-7C.
[Amended 3-3-2004 by Ord. No. 2004-02]
D.
Every agency that adopts, has adopted or amends CEQR
procedures must, after public hearing, file them with the Commissioner,
who will maintain them to serve as a resource for agencies and interested
persons. The Commissioner will provide notice in the ENB of such procedures,
upon filing. All agencies that have promulgated their own CEQR procedures
must review and bring them into conformance with this chapter. Until
agencies do so, their procedures, where inconsistent or less protective,
are superseded by this chapter.
E.
The Common Council 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:
(3)
This designation shall take effect 30 days after filing
with the Commissioner. Each designation of a CEA must be published
in the ENB by the department and the Department will serve as a clearinghouse
for information on CEA's.
A.
When a draft and final EIS for an action have 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 § 176-11 of this chapter. However, except in the case of Type II actions listed in § 176-5 of this chapter, no agency may undertake, fund or approve the action until the federal final EIS has been completed and the agency has made the findings prescribed in § 176-11 of this chapter.
B.
Where a finding of no significant impact (FNSI) 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 shall not automatically constitute
compliance with CEQR. In such cases, agencies remain responsible for
compliance with CEQR.
C.
In the case of an action involving a federal agency
for which either a federal FNSI or a federal draft and final EIS have
been prepared, except where otherwise required by law, a final decision
by a federal agency shall 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,
or 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 Officer Law, that specifically identified
information be held confidential. Prior to divulging any such information,
the agency must notify the project sponsor 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, U.S. Government Printing
Office, Washington, DC 20402, and for inspection and copying at the
Department of Environmental Conservation, 625 Broadway, Albany, NY
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 circumstances.
