B. SEQR Handbook: Type II Actions
In This Section You Will Learn:
- what are Type II actions;
- what major changes were made to SEQR in 1996;
- what are emergency actions;
- what is "grandfathering".
A. TYPE II ACTIONS-ACTIONS REQUIRING NO REVIEW
1. Are there actions that, once classified, require no further agency review under SEQR?
Yes, there are, and they are called "Type II." (See also the definition of "action" in the Decisions Subject to SEQR section of this Handbook). Actions that can be classified "Type II" actions under the SEQR regulations do not require any further SEQR review, not even an EAF. The list of actions identified as Type II is found in 6 NYCRR Part 617.5
2. What is a Type II Action?
Type II actions are those actions, or classes of actions, which have been found categorically to not have significant adverse impacts on the environment, or actions that have been statutorily exempted from SEQR review. They do not require preparation of an EAF, a negative or positive declaration, or an EIS. Any action or class of actions listed as Type II in 617.5 requires no further processing under SEQR. There is no documentation requirement for these actions, although it is recommended that a note be added to the project file indicating that the project was considered under SEQR and met the requirements for a Type II action.
The agency classifying the action must make sure that all aspects of the whole action are included when determining that an action is Type II. Additionally, the applicant or agency working with the action must keep in mind that, although an action is classified as Type II under SEQR, it must still comply with all relevant local laws and ordinances and meet all the criteria or standards for approvals.
3. What do the items on the Type II list mean?
Based on DEC's experience, and on court decisions, the following additional examples are offered to illustrate Type II actions as discussed under 617.5(c).
"maintenance or repair involving no substantial changes in an existing structure or facility;"
This allows for the normal cleaning, upkeep and minor repairs to a structure or facility. Painting, repair of damaged wood around a window, retiling a ceiling, repairing a hole in an existing fence, sealing an asphalt parking lot, installing vinyl siding on a house in a historic district, or reshingling a roof would be examples of actions that would fit in this category.
Ordinary home repair, business repair, in-place, in-kind remodeling, or upgrading to meet fire or plumbing codes are not substantial changes, unless the repairs are extensive enough to trigger any of the Type I thresholds. Even if a building is damaged or destroyed by fire, if it is rebuilt in the same footprint, and is comparable in size, scale and intended use to the old structure, it is still not subject to SEQR.
Examples of repair and remodeling that would not exceed a Type II threshold and examples of actions that would be considered a "substantial change" that does exceed the Type II threshold are given below:
- If a school district decided to pave an narrow walkway denuded of vegetation and beaten into the ground by children running for the school bus, the action would not be considered a substantial change. However, paving a 12,000 square foot play area for handball, tennis, or basketball courts would be considered a substantial change.
- A commercial building located in a town with a population of 150,000 or fewer was damaged by a tornado. The owner decided to take advantage of a bad situation and knock out the side of the structure that was damaged and build a whole new wing on the building. The plan submitted to the town for approval is for a warehouse area that exceeds 50,000 square feet. This action would be a substantial change, and thus subject to SEQR.
- If a waterfront was bulkheaded, and the old wood was rotting, replacing the bulkhead with new wood, of the same length and as close to the old location as possible, would not be considered a substantial change. Placing the new bulkhead a sizeable distance from the old bulkhead (for example, several feet seaward), and filling in the area between the old and new bulkheads, would be considered a substantial change. Bulkheading an area that had never been bulkheaded before would also be considered a substantial change.
". . . 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 section 617.4 of this Part"
Replacement in kind refers to function, size and footprint. Stick for stick replacement is not needed to qualify as replacement in kind, especially where the changes are required by current engineering, fire and building codes. Actions such as building ramps as required by the Americans with Disabilities Act, installing new or improved fire escapes, or removal of asbestos shingles would be Type II.
After over twenty years of use, the Alfred E. Smith state office building in Albany needed to be rehabilitated and brought up to current codes. It was initially thought that this action would be classified as Type II because the action included repairs, upgrades and in-kind replacement. However, when the project manager for the New York State Office of General Services looked more closely at the wording of 617.(5)(c)(2), he realized that the action did not satisfy the final provision in the item ". . .unless such action meets or exceeds any of the thresholds in section 617.4 of this part." The scope of the work on this multi-story building far exceeded the threshold in 617.4(b)(6)(v):
"(6) activities, other than the construction of residential facilities, that meet or exceed any of the following thresholds; . . .
(v) in a city, town or village having a population of more than 150,000 persons, a facility with more than 240,000 square feet of gross floor area;"
Clearly the wording of 617.5(c)(2), combined with 617.4(b)(6)(v), leads us to the conclusion that the action was properly classified as Type I, instead of Type II.
"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;"
Clearing a field to plant crops; construction, maintenance and repair of farm buildings and structures; building of dikes, ditching, or installing drainage piping; or erecting a farm stand would not require SEQR review. However, subdivision of land to sell off as lots would be subject to SEQR.
If a farmer decides to build a home for his son and the son's family, the action is not agricultural in nature, but would be Type II anyway pursuant to 617.5(c)(9), provided that local laws did not require a subdivision approval for the new house. If some sort of discretionary approval was needed before the house could be built, the action would no longer be Type II.
"re-paving of existing highways not involving the addition of new travel lanes;"
This runs parallel to the "in place, in-kind" replacement of structures. Routine maintenance and paving is not subject to SEQR, but changes or expansions such as the addition of lanes for traffic, a new interchange, or the building of a rest area would need SEQR review.
" street openings and right-of-way openings for the purpose of repair or maintenance of existing utility facilities;"
Again, this distinguishes routine recurring actions from new projects. In contrast to routine repair or maintenance, opening streets to install new utility distribution lines would be subject to SEQR unless the action falls under the description in 617.5(c)(11) below.
"maintenance of existing landscaping or natural growth;"
In a municipal park, routine trimming of trees or replacement of shrubbery that has died would be Type II under this section. In contrast, clear-cutting of a forested area of the park would not fit under the heading of maintenance.
"construction or expansion of a primary or accessory/appurtenant, non-residential 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;"
The first place to look for a specific definition of gross floor area is your local code book (town/city/village). If these local codes have no definition, DEC provides this clarification: cellar or basement space not used for the main purpose of a non-residential facility is not considered part of the gross square foot area of the facility. However, a basement used as a sales floor, or for office space would be included as part of the gross floor area. The same logic also applies to attic space. Unless explicitly included by local codes, the footprints of structures such as gas pumps and canopies are not included in the definition of gross floor area. The calculations are for the floor area of the building itself.
The primary environmental impacts associated with these types of actions are usually infrastructure-related concerns such as traffic, storm water drainage and sewage disposal; or nuisance issues such as noise, lighting and littering. In communities with site plan review or special use permit requirements, these routine concerns can be managed well under those local review standards, without the need for the additional analysis or authority which an EIS could provide. For communities that have no land use controls, such as zoning or site plan review, these types of small commercial projects usually require only a building permit, which is a ministerial act and already exempt from SEQR.
Another issue with some such applications is the compatibility of the proposed use with existing uses (e.g., whether this fast food facility be constructed adjacent to an existing residential community). This issue should generally be addressed prospectively, under zoning, before an application is received. However, in communities which have not updated their local land use controls to reflect current development patterns, care must be taken to not overextend the SEQR process in an attempt to make up for out-of-date zoning.
Examples that fall in the Type II non-residential construction category are:
- Expansion of a local Elks Lodge facility by 3500 square feet, in a manner and location consistent with local zoning;
- Expansion, in a commercial zone, of a restaurant where the project involves less than 4,000 square feet, exclusive of an outdoor patio for serving patrons in good weather; and the final building meets setback requirements.
Radio and microwave transmission towers or other stand-alone facilities constructed specifically for radio or microwave transmission are specifically not included in the exemption for construction of small non-residential structures. However, if a small dish antenna or repeater box is mounted on an existing structure such as a building, radio tower, or tall silo, the action would be Type II.
"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;"
This section includes changing transportation schedules or policies, changes in curriculum, developing or changing after school activities, changing the school calendar, or transferring students from one school to another. It also includes an expansion of less than 10,000 square feet. This includes construction of new, elevators or storage space; or expansions for new classrooms (typically eight rooms or less), elevators, special facilities for handicapped access, libraries, lunch rooms, special education facilities, computer laboratories, garages, caretaker residences, teacher centers, child-care centers, storage buildings, pole barns, press boxes and greenhouses, etc.
The closure of a school is also included as a Type II action under this item. However, refitting an elementary school building to become a senior center or town hall administration building would not fit under this category. In addition, a school closing with the intention of leasing the building for non-school purposes would not be classified as Type II.
Educational institutions include all schools and libraries chartered and/or registered by the New York State Board of Regents.
"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 section 617.5(c)(11) and the installation, maintenance and/or upgrade of a drinking water well and a septic system;"
Note that this item is specific to one, two and three-family dwellings on approved lots only. While the size of the project is an important factor in determining applicability of this item, approval of the lot is equally important. This provision does not apply where one or more new lots are being created but are not yet approved. SEQR review is still warranted in those instances.
Where a building lot has already been approved, then even when a single-family, two-family or a three-family residence requires one or more additional approvals, such as site plan approval or zoning variances from a local board, or other permits such as a DEC natural resources permit (freshwater wetlands, tidal wetlands, stream protection, etc.), no further review under SEQR is required. This does not mean that the permit or approval(s) can be ignored, nor does it mean that the governmental authority must issue the permit(s). The project must still meet all regulatory standards and be issued the approval(s) or permit(s).
Examples of actions that are classified as Type II by this item are:
- demolition of a small seasonal camp and its replacement by a large permanent home;
- building one, two or three-family homes on a few remaining lots in an older approved subdivision; or
- replacement of a single-family home destroyed by fire with a two-family home of similar dimensions in an area zoned for one or two-family residences.
This provision was added in the 1996 amendments to the SEQR regulations. Over twenty years of experience has shown that these kinds of actions do not have a significant adverse effect on the environment, and the preparation of an EIS will not provide better explanation or understanding of impacts nor provide the reviewing agency with significant additional authority.
The typical impacts associated with the construction of single, two or three family residences are limited to clearing, grading and filling of the site, noise, dust and runoff. These impacts are minor in nature and easily controlled by standard construction techniques. Additional impacts from occupancy of the structure can be from use of pesticides and herbicides for lawn and garden care; and the construction and operation of water supply wells and onsite sanitary systems. These activities for one-, two- and three-family homes seldom create a significant adverse environmental impact. Any of the non-significant impacts that result from the construction of a house are subject to review under other existing local, state and federal regulatory programs, and they can be controlled through these jurisdictions. Proper local land use planning, zoning and subdivision regulations can and do protect readily identifiable unique features from the impacts of inappropriate development.
There have been very few court cases in which an EIS was required for a one, two or three-family dwelling. In reviewing those cases, Department staff found that the decisions turned on whether the proposed projects met DEC, Department of Health or local permit issuance standards; whether the projects complied with local zoning; or a combination of the two. The broader environmental questions were not part of the decision to require an EIS. Additionally, the EISs that were reviewed did not substantively contribute information that added to the lead agency's decision.
"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;"
The key to this item is that accessory/appurtenant structures must be "minor" ones having a "secondary" use, or facilities adjunct to, or supporting some main use of the facility. The list of appurtenant structures contains examples and is not intended to be complete or exclusive. Other examples of structures within this category are: catwalks, gazebos, swing sets, permanent basketball hoops on poles, hot tubs, skateboard ramps, dog kennels, and cabanas.
"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;"
If the extension of utility service is functionally dependent on an action on the Type II list, then all parts of the action constitute the whole action and are not subject to SEQR. If the destination of the utility line is a Type II action, it is reasonable that extending utility lines to the structure or facility is also Type II.
This item would not, however, apply to the extension of utility service to larger projects such as a new subdivision undergoing review by a planning board. In these cases, the SEQR review would include all phases or components of the activity consistent with the "whole action" concept of review. Separating the utility extension from the review for the rest of the project would constitute segmentation. If any component of an action being evaluated for applicability of this subsection has aspects that are Type I or unlisted actions, it should be reviewed as a Type I or unlisted action and not classified as Type II under this item.
In addition, this item covers only distribution lines, not transmission lines. High voltage transmission lines (defined as an electric transmission line of a design capacity of 125 kV or more extending a distance of one mile or more, or of 100 kV or more and less than 125 kV, extending a distance of ten miles or more) and gas transmission lines (defined as a gas transmission line extending a distance of 1,000 feet or more to be used to transport fuel gas at pressures of 125 pounds per square inch or more) are reviewed under Article 7 of the Public Service Law, and therefore are not subject to SEQR review. Transmission lines below those thresholds may be subject to SEQR if they require discretionary approvals from any agencies.
"granting of individual setback and lot line variances;"
This section covers all variances for setback and lot line requirements including front, side, back, width and depth. In this item, "individual" denotes one project on one lot.
This section does not include use or area variances. A use variance is defined by the New York Planning Federation as "the authorization consistent with New York State Town Law Section 267-b (www.dos.state.ny.us/lgss/townlaw.html#267b) and by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations." For example, a variance to allow a driveway or parking area closer to a side property line than normally allowed would be a Type II. However, a use variance to allow a new business to locate in a residential district would not be allowable.
Area variance is defined in the discussion of section 617.5(c)(13) directly below.
"granting of an area variance(s) for a single-family, two-family or three-family residence;"
Area variances for single-family dwellings, including lot coverage are defined by the New York Planning Federation as the "authorization consistent with New York State Town Law Section 267-b (www.dos.state.ny.us/lgss/townlaw.html#267b) and by the zoning boards of appeal for the use of land in a manner that is not allowed by the dimensional or physical requirements of the applicable zoning regulations." The reasons for including these actions in the Type II list are essentially the same as those for construction of one, two or three-family residences. That is, long term experience has shown that this kind of action rarely results in adverse environmental impacts.
Further, an EIS will not provide the decision-making board with any information that it doesn't already have regarding the requested relief from dimensional requirements. Including granting of area variances in the Type II list allows boards to issue or deny variances solely based on the standards and criteria established by the zoning code.
"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;"
This section includes activities such as:
- pruning or shaping of trees,
- removal of slash and downed trees,
- removal of undergrowth, and
- controlled burning of vegetation involving less than 10 acres,
- selective cutting of trees.
Some local governments now require tree cutting or tree removal permits. If the permits are for activities listed here, then granting or denying them would not trigger an environmental review under SEQR.
Controlled burning of vegetation can be a useful forest management tool to: prevent accumulation of dry dead underbrush and thus prevent dangerous large fires; to revitalize the forest by returning nutrients to the soil; or to permit natural reforestation of trees requiring the heat of a fire to release seeds. While controlled burning is a useful tool, burning of areas larger than 10 acres would be a Type I action and so must be evaluated to identify potential adverse environmental impacts. Any agency reviewing or participating in a controlled burning must take care to evaluate the impacts of the whole controlled burn program, and avoid segmentation of the project into 10 acre parcels in an attempt to avoid SEQR analysis. (See the Handbook chapter on Segmentation.)
"minor temporary uses of land having negligible or no permanent impact on the environment;"
This section includes activities such as:
- allowing use of state lands for public gatherings,
- allowing use of a parking lot in a public park as a temporary leaf collection station while a permanent facility is being located, and
- the conversion of a small portion of a public park to parking for 18 months to allow renovation of a hospital.
"installation of traffic control devices on existing streets, roads and highways;"
This section includes installation of:
- rumble strips on road shoulders, and
- lane restriction devices such as jersey barriers.
It also includes:
- restriping of lanes,
- reconfiguring of traffic lanes within the existing paved area in a manner that does not require expansion of the paved roadbed; for example, lane shifts between the morning and evening rush hours.
"mapping of existing roads, streets, highways, natural resources, land uses and ownership patterns;"
This section does not include the planning process that involves creation of new zones or land use restrictions in a municipality. It does include land surveys, deed searches, interviews or questionnaires, and any other method used to gather or interpret data for mapping purposes. This also includes the use of any technology to record, capture or display data.
"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;"
Systematic collection of information is necessary to allow informed decisions to be made regarding the environmental impact of an action. This data gathering is an important preliminary tool for environmental analysis.
Examples of allowable tests and equipment are:
- perk tests,
- test wells to check for groundwater contamination,
- water supply investigations, or
- meteorological towers to gather atmospheric data.
A very large example of this item is the plan by the New York State Office for Technology (OFT) to establish a statewide wireless network. Intended primarily for emergency response purposes; OFT initially examined what kind of technology is best, where antennas must be placed to facilitate complete coverage of the state, and how to install these antennas to minimize disturbance to the area in which each is located. The preliminary investigations to obtain data to make decisions on the various considerations for the action were deemed to fit into this Type II category. The actions that are subject to additional SEQR review include the actual creation of the plan for the network, including the decision making process for the siting and design of individual towers.
In another recent example, the DEC classified a one-time, two-week test burn of tire-derived fuel in an existing boiler as Type II under this item, and the classification was upheld in court.
"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);"
A ministerial act is an action performed as prescribed by law or regulation and based on a specific set of facts without the use of judgment or discretion. It is also called a non-discretionary decision. There is a longer discussion of this topic in the Decisions Subject to SEQR section of this Handbook.
By definition, SEQR applies to discretionary decisions only. For decisions where a permit or license must be issued if a given set of circumstances have been met, SEQR does not apply. In addition to the examples in the regulations, there are many others: dog licenses, resident permits to use a town swimming pool or other town facility, and voter registration.
A few municipalities have building permits that include some discretionary approvals. For a discussion of ministerial versus the less commonly occurring discretionary building permit see Atlantic Beach v. Gavalas,1993.
"routine or continuing agency administration and management, not including new programs or major reordering of priorities that may affect the environment;"
SEQR does not apply to the ordinary administration and continuing management of a governmental agency. It is when new actions are taken, or new programs are begun, that the environmental assessment must be done.
This section includes activities such as:
- decisions to relocate an office from one building to another,
- entering into a contract to operate an existing facility,
- setting tipping fees at a landfill,
- providing funding for an existing agency to allow it to conduct current programs,
- revising application/registration fees,
- changing the operating hours of a public facility, and
- the designation of a structure as a historic landmark.
"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;"
This parallels the considerations in item 617.5(c)(18) of this section. Investigative studies are vital to making appropriate analytic decisions when choosing whether or not to undertake an action, deciding what scale of development is possible, or where to site a project. However, if the studies were commenced after the agency was committed to the action for which the studies were being conducted, SEQR would apply.
As an example, the New York State Office for Technology (OFT) is in the process of creating a Statewide Wireless Network. OFT's goal is to construct the network using the fewest new towers possible. To that end, there were discussions with various municipalities and counties to try to come to agreement on sharing towers. Tompkins County had a tower under construction, and had only one site left uncommitted for a repeater. The Office for Technology agreed to hold an "option" on that site, but was not permanently committed to locating its facility there. This kept the action as Type II under this section because the Office had made no final commitment regarding the actual construction of the network hardware. When design plans were completed, another site could have been used, and the "option" given up.
"collective bargaining activities;"
Labor-management bargaining in and of itself is not considered as having an adverse environmental impact. However, actions taken as a result of such bargaining, such as improvements to a workplace, changes due to safety concerns, different parking facilities, or construction necessary to accommodate larger maintenance equipment may be subject to SEQR review.
" investments by or on behalf of agencies or pension or retirement systems, or refinancing existing debt;"
Again, these are primarily management decisions that do not have adverse environmental impacts. Note that re-financing is distinguished from an initial grant or loan, and that initial funding decisions by government entities remain subject to review under SEQR.
" inspections and licensing activities relating to the qualifications of individuals or businesses to engage in their business or profession;"
This section includes activities such as:
- the conduct of inspections for compliance with environmental, health, or construction standards;
- issuance of peddler permits and
- issuance of professional licenses.
"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;"
This section does include the purchase or sale of all:
- interior furnishings;
- fire trucks;
- garbage and recycling hauling trucks;
- school busses;
- maintenance vehicles,
- construction equipment such as bulldozers, backhoes, dump trucks;
- police cars,
- computers, scanners, and related equipment,
- firearms, protective vests, communications equipment, fuel, tools and office supplies.
As with investments and bargaining activities, the simple purchase or sale of materials does not create an adverse environmental impact. Also note that land transactions involving one or more government entities are not exempt from SEQR; this means that tax sales as well as other dispositions of excess property are subject to review under SEQR. In addition, note that government transactions involving specific hazardous materials also remain subject to review under SEQR.
" 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;"
In its elemental form, each activity described in this section consists of a name or date change on a permit form. There is no environmental impact.
If the action does involve a material change, then it is no longer Type II. An example of material changes in a permit condition would be allowing a mine operator to excavate a mine to a greater depth than the previous permit allowed. Another example would be the redesign of access points to a shopping mall so that the shoppers would enter the highway at a different location.
"adoption of regulations, policies, procedures and local legislative decisions in connection with any action on this list;"
This paragraph refers to enacting an ordinance or resolution to implement activities such as those in 617.5(c)(20) of this section.
Legislative decisions can only be made by bodies composed of members elected by voters from within a political jurisdiction. Thus the provision that allows agencies to refuse to consider legislative actions without applying SEQR pertains only to county, city, town and village legislative bodies and elected school boards [also see the discussion of actions of the Legislature under 617.5(c)(37)]. Appointed boards such as planning commissions and zoning boards of appeal must apply SEQR even though their members may agree in advance they are likely to disapprove a proposal before them.
" 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 Part have been fulfilled;"
This section refers to the identification of deficiencies and sufficiency of applications and the fact that these efforts need to be done before the action (application) can be further processed under SEQR or the underlying state or municipal law. These activities are designed to protect the environment and maintain compliance with state or municipal laws and ordinances. By definition there would be no adverse environmental impact. Early review conducted prior to SEQR may inform agencies of issues (for example, identification of a wetland on a project site).
"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;"
Examples of law enforcement actions exempt from SEQR include:
- local enforcement of zoning code violations,
- replacement of pollution control equipment with better technology pursuant to administrative or judicial order,
- closure of landfills pursuant to administrative or judicial order,
- remediation of wetland violations or hazardous waste sites under administrative or judicial order; and
- construction of a new water filtration plant, as ordered by an "administrative tribunal", because the old one was failing. Because the action was to be undertaken to satisfy the mandate specified by an administrative determination issued by an agency, the town had no discretion as far as initiating the construction, and so that element of the project can be classified as Type II. However, if the order does not explicitly specify the location of the new plant, then that siting decision may still be subject to SEQR.
When such court or administrative orders are explicit with regard to a component of this activity, the action is entirely exempt from SEQR. If, however, the orders have left some discretion as to the methods of implementing the order, those discretionary aspects of the action may still be subject to SEQR review. For example:
- A respondent was found to have an illegal dump of construction debris. If he is merely ordered to apply for a permit to construct a disposal site, but DEC is not ordered to approve the application, SEQR would apply.
- A developer has begun construction on a subdivision, and his crew bulldozes a 15 acre wetland and small pond. A DEC Environmental Conservation Police Officer catches the crew in the process of this destruction, stops the work and gives the developer a summons. The developer and DEC enforcement attorneys agree to settle the case civilly rather than criminally. In addition to paying a fine, the developer is mandated to obtain a DEC wetlands permit before he proceeds with any work for his subdivision. He is also required to reestablish the wetland and pond that he destroyed. Again, SEQR would apply to the actions covered by the wetlands permit application. However, the restoration of the wetland to its former state would be a Type II action because it was directly required by the terms of the settlement.
"adoption of a moratorium on land development or construction;"
By its very nature, something that stops people from altering or reconfiguring the landscape, is protective of the environment.
Often a town or village will place a temporary moratorium on development while a master plan for the municipality can be finalized. This allows the enactment of desired zoning rather than allowing the potential patchwork of uses that might occur without the plan.
A temporary moratorium on construction might also be adopted while the citizens of the town decide whether they wish to allow a project such as a "big box store," which may cause some hardship for small local businesses; or a large stadium, which may have adverse effects on the surrounding neighborhoods.
"interpreting an existing code, rule or regulation;"
This item involves the understanding that local governments often act separately on the interpretation of an action and the action itself; acting on fundamental laws or regulations in balancing their decisions, not always SEQR (for example, a ZBA in deciding what zoning rules apply to a proposed new use not specifically named in their ordinances). Still, actions proposed as a result of an interpretation of the provisions of the law may not always be Type II and may qualify as Type I, or Unlisted actions, under SEQR.
"designation of local landmarks or their inclusion within historic districts;"
This is comparable to the explanation in 617.5(c)31 above. The designation has no effect on the environment. However, actions proposed as a result of the designation, or courses of actions changed as a result of this designation, may still be subject to SEQR.
" 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 Part;"
This paragraph is very specific. An emergency action must do the least environmental harm possible, and the duration of the "emergency action" does not extend beyond the immediate crisis.
Emergency actions can include, but are not limited to:
- Agency responses to natural disasters such as wild fires in a forest, floods, ice storms, tornadoes, harmful insect infestations, etc.
- Agency responses to man-made disasters such as building fires, demolition of dangerously deteriorated buildings, chemical spills, transportation accidents or acts of terrorism.
Some real world examples:
- Restoration of utilities and claring of tr ees, wires and other debris from roads after a huge ice storm.
- Immediate stabilization or repair of roads, culverts and bridges to prevent further damage or danger to human life after significant damage from flooding. The restoration of these roads, culverts and bridges would also be covered under the emergency action because of the necessity of restoring routine access to the affected areas and the potential need for quick access for police, fire or rescue purposes. Ancillary activities such as necessary traffic rerouting are generally considered part of the emergency action and are therefore Type II.
- Restoring electric power to an area after an outage caused by either natural materials breaking the lines or shorting out switches (ice, tree branches, lightning, animals) or human intervention (human error or deliberate disruptions at power stations, vehicle accidents).
- Controlling wild fires in forested or brushy areas is, of course, also considered an emergency response. Any reasonable response by firefighters in an attempt to control and extinguish the blaze is included in the Type II designation. These activities include, but are not limited to:
- bulldozing of a fire break,
- cutting of trees,
- creating of access roads for fire equipment,
- spraying of or aerial dumping of fire retardants,
- damaging of wetlands, and
- damaging of the bed or banks of regulated waterways, lakes or ponds in the process of gaining access to the fire or for siphoning off water to fight the fire.
Emergency actions are also further discussed in Questions 14 and 15 of this section of the Handbook.
"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;"
Such previously-approved or undertaken activities are referred to as "grandfathered". Some examples of grandfathered actions are these:
- Development of individual lots in a subdivision where all approvals had been obtained before SEQR was enacted; or
- Continuation of mining within the original property lines in a quarry that was in operation before SEQR was enacted, using basically the same methods and procedures for the entire time.
For example, a rock crushing and cement manufacturing company that has continually operated in the same manner as it did before the effective date of SEQR in 1976 may be considered a grandfathered facility. However, if an individual or the Commissioner determines that it is still practicable either to modify the action to mitigate potentially adverse environmental impacts or to choose a feasible or less environmentally damaging alternative; or if the facility began to modify its working methods and appeared to be more likely to cause significant adverse environmental effect, the facility could also become "ungrandfathered". This would mean that the cement company may be required to draft an environmental impact statement (EIS) for the project or related action.
Grandfathering is further discussed in Questions 16 and 17 of this section of the Handbook.
"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;"
The Public Service Commission (PSC) has sole approval authority over actions involving electric power transmission lines, power plants, high pressure natural gas pipelines, and related actions. While DEC and other agencies can have input into the review of the application for an action, the ultimate decision is made by the PSC. The PSC's authority, created in statute, has its own "SEQR-like" review, record, and decision standards that apply to major gas and electric transmission lines (Public Service Law Article VII). The PSC review process has also applied to new generating facilities (under former Public Service Law Articles VIII and X), but those have now both expired, which means that SEQR does apply to new generating facilities at this time [October 2007].
Question 13 in this section of the Handbook includes additional related information.
"actions subject to the class A or class B regional project jurisdiction of the Adirondack Park Agency or a local government pursuant to section 807, 808 and 809 of the Executive Law, except class B regional projects subject to review by local government pursuant to section 807 of the Executive Law located within the Lake George Park as defined by subdivision one of section 43-0103 of the Environmental Conservation Law;"
Within the cited sections of NYS Executive Law, the Adirondack Park Agency Act establishes "SEQR-like" review, record and decision standards for the Adirondack Park Agency (APA) and for local governments with APA-approved local land use programs, and all decisions made under that authority are exempt from SEQR.
The Lake George Park and Lake George Park Commission were established later, under separate authority of Article 43 of NYS Environmental Conservation Law. Although the Lake George Park is within the Adirondack Park, the legislature specifically excepted local land use decisions within the Lake George Park from the general Adirondack Park Agency Act exemption; the practical effect is that all land use decisions by local governments within the Lake George Park as well as decisions by the Lake George Park Commission itself, are subject to review under SEQR.
[See also Question 13]
"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 re-zoning where the local legislative body determines the action will not be entertained"
Until the 1995 lower court decision in Hudson River Sloop Clearwater et. al. v. Cuomo et. al. NYLJ 01/12/95 (see the section Landmark Court Decisions on SEQR), the DEC believed the conclusion that the Governor was exempt from SEQR was so obvious that it did not need to be added to the regulations. The DEC's position on the matter was upheld by the court. However, since the arguments of that case involved the absence of a specific exemption for the Governor in the regulations, the DEC explicitly clarified that the Governor is not a state agency as defined in ECL §8-0105(1) or 617.2(c) and (ah).
As a rule, the Governor does not directly approve, fund or undertake any actions subject to SEQR. The only direct actions the Governor takes involve emergencies such as dealing with disasters or calling out the National Guard, which are already exempt from SEQR review. The Governor will direct one of the Executive Agencies to take an action. These actions are subject to SEQR review and it is at this level that the SEQR process will be applied.
The National Environmental Policy Act (NEPA) upon which SEQRA is modeled similarly does not include the President as an agency subject to its requirements (40 CFR §1508.12; Alaska v Carter, 462 F. Supp. 1155, 1159-60 (1978)).
Although no explicit statutory exemptions have existed for the State Legislature and the Judiciary, the regulations have always exempted these branches of government from compliance with SEQR [see 617.5(37)]. The reasoning is the same as that for excluding the Governor. The Legislature does not directly take actions. Various state agencies must promulgate regulations to execute laws, and these regulations are subject to SEQR. The Courts adjudicate proceedings and may direct a party involved in the court proceedings to take an action that may be subject to SEQR, but it is not the court itself that will take the action.
4. Does the list of Type II actions in Part 617 apply to all agencies subject to SEQR?
Yes. All agencies that are subject to SEQR are bound by the Type II classifications contained in the statewide list found in Part 617.5.
5. What are the procedural requirements under SEQR for a Type II action?
There are no procedural requirements of any kind for a Type II action. No environmental assessments or determinations of significance are required.
However, a prudent agency should maintain, in its own files, a brief record showing that the proposed action had been considered under SEQR and had met the requirements for a Type II action. Those local agencies that use resolutions should simply note as a clause that the action has been considered under SEQR and classified as a Type II action. It is also good practice to cite the appropriate subdivision or paragraph of section 617.5.
6. If an agency has identified an action as requiring no review under SEQR, may the agency proceed with the action?
Yes. Once the agency has determined that no aspect of the action requires SEQR review, the agency may proceed in accordance with the criteria or standards for approval under other relevant laws, regulations and ordinances.
7. Can any agency add to the statewide Type II list?
Yes. As stated in sections 617.5(b) and 617.14(e), any agency may expand, for its own use, the statewide Type II list by adopting a list of additional Type II actions, provided that the list is not less protective of the environment than the statewide Type II list. Such additions do not apply to any agencies other than the one that added the action. Also, an agency that has listed an action as Type II cannot be an involved agency in the SEQR review of such action by other agencies.
8. Can an agency identify a statewide Type I action on its Type II list?
No. The regulations specifically prohibit an agency from designating as Type II any action on the statewide Type I list [see 617.4(a)(2)].
9. What happened to the Exempt and Excluded Categories of Actions?
All the actions once separately listed as "Excluded" actions, "Exempt" actions and "Type II" actions under pre-1996 versions of 617 have now been combined into the category of Type II. The aggregation of all these actions under the heading of Type II maintains the statutory intent of indicating that once the action is classified and found to be Type II, the SEQR process is concluded for that action. This aggregation simplifies the number of places a lead agency must look to make this determination.
Since an important first step in the environmental review process it to ascertain whether SEQR applies to an action, the public is well-served by having to refer to only one section to determine if SEQR applies. As a result, an agency's staff time, efforts and resources will be focused on reviewing those actions that may have potentially significant adverse impacts on the environment.
10. What commonly occurring actions were added to the Type II list in the 1996 SEQR regulation amendments?
In 1996, DEC added these items to the Type II list in Section 617.5.
- "granting of an area variance(s) for a single-family, two-family or three-family residence"
- "construction or expansion of a primary or accessory/appurtenant, non-residential 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"
- "adoption of a moratorium on land development or construction"
- "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 and the installation, maintenance and/or upgrade of a drinking water well and a septic system;"
11. Didn't a court case nullify the "construction or expansion of a single-family, two-family, or three-family residence on an approved lot..." and small non-residential use provisions?
Yes, briefly, in a ruling that was ultimately overturned. The challenge to the Type II list was met and defeated, so the Type II list remains as adopted.
DEC was sued over the 1996 additions to the Type II list, primarily the addition of the small commercial exemption as well as construction of one, two, or three family dwellings on approved lots. The State Supreme Court ruled in favor of the challengers, however, DEC appealed that ruling and prevailed in the Appellate Division. Then, early in 2001, the Court of Appeals declined to hear and effectively refused to reverse the Appellate Division's ruling. Therefore, because the higher court upheld the inclusion of the new items in the Type II list, and affirmed reinstatement of that language in Part 617, these types of actions remain Type II statewide.
(See West Village Committee, Inc. et al. v. Zagata, 1998)
12. What other major change was made to the Type II list in the 1996 SEQR rulemaking?
One additional provision was also codified by its addition to the Type II list. This exemption was always a generally accepted unwritten provision of SEQR, but was added in the 1996 amendments to clarify the concept and make it clear to the public.
"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"
13. What kinds of actions are specifically named by statute as exempt or excluded from review under SEQR?
The Legislature has specifically exempted or excluded the actions of certain agencies from review under SEQR. These agency actions were exempted by the Legislature because they already had SEQR-like analysis processes incorporated into their review. The requirement of an additional SEQR review would therefore be redundant.
Exemptions listed under ECL Article 8, SEQR:
- The Adirondack Park Agency (APA) or local governments to whom the APA has that are delegated specified APA review functions, for actions on private land within the Adirondack Park pursuant to Executive Law sections 807-809, are exempt for these actions.
- The Public Service Commission is exempt for actions requiring a permit certificate of environmental compatibility and public need pursuant to Articles VII, VIII and X of the Public Service Law (e.g. high pressure natural gas pipelines, transmission lines and power plants). However, the Article X statute expired January 1, 2003, and to date, has not been reinstated in law by the legislature; so SEQR does apply at this time to the review of power plants. Question 3 (617.5(c)(35) of this section of the Handbook further discusses these PSC actions.
- Grandfathered actions - Question 3 617.5(c)(34) and Questions 16 and 17 in this section of the Handbook further discuss these actions.
In addition, there are a few narrowly focused exemptions enacted in laws other than the ECL:
- The Metropolitan Transit Authority (MTA). Prior to 1981 the (MTA) was fully subject to SEQR. However, in 1981 section 1266 of the Public Authorities Law was amended to exempt certain activities of the MTA from SEQR review. Section 1266-3 states that establishing, among other things, tolls, rates and fees are not "actions" under SEQR.
In addition, 1266-11 provides that: "[n]o project to be constructed upon real property theretofore used for a transportation purpose, or on an insubstantial addition to such property contiguous thereto, which will not change in a material respect the general character of such prior transportation use, shall be subject to the provisions of [SEQR]."
This subdivision also excludes from SEQR review the planning, design, acquisition, improvement, construction, reconstruction or rehabilitation of a transportation facility, other than a marine or aviation facility, if a federal environmental impact statement has been required pursuant to the National Environmental Policy Act (NEPA). This exemption applies even if the federal EIS is not sufficient to make findings under SEQR.
- The New York Power Authority (NYPA), established pursuant to section 1002 of the Public Authorities Law, has the potential to be excluded from the provisions of SEQR only to the extent that compliance with SEQR is inconsistent with the terms and purposes of Section 1014 of the Public Authorities Law. Specifically, section 1014 provides that SEQR, as well as all provisions of the ECL and "every other law relating to the Conservation Department . . ." may be superseded under certain circumstances. Specifically, any such law may be "superseded, modified or repealed as the case may require 'when its provisions shall be found in conflict with the provisions of this title or inconsistent with the purposes thereof.'" However, this exemption is permitted only to the extent "necessary to make this title effective in accordance with its terms and purposes." Thus, SEQR (or any other environmental law) may be superseded only to the extent that full compliance with it prevents NYPA from carrying out its responsibilities.
- The Long Island Power Authority (LIPA), established by the Public Authorities Law, was directed to close and decommission the Shoreham Nuclear Power Plant on Long Island. The statute specifically exempted from SEQR requirements, the LIPA acquisition of securities or assets of the Long Island Lighting Company, which included the transfer of the Shoreham facility as a separate asset.
- The Thruway Authority was granted an exclusion from SEQR in 1990 for the acquisition of Interstate Route 287 which connects the Tappan Zee Bridge to the New England Section of the Thruway.
- In 1990 The Hudson River Waterfront Area was similarly excluded from SEQR requirements. The exclusion only applied to those portions of the Hudson River shoreline in Manhattan that were removed from the West Side Roadway Construction Area, and subsequently designated as The Hudson River Waterfront area. The exclusion did not apply to individual projects within the designated area, only the change of designation.
- The New York State Department of Transportation (NYSDOT). Also in 1990, an amendment to section 14(i) of the Transportation Law granted NYSDOT a narrow exemption from SEQR for certain actions involving addition of travel lanes between exits 30 and 64, and construction between exits 49 and 57 of the Long Island Expressway. The exemption also spelled out when environmental impact statements were required, where segmentation of the action was appropriate, and allows commencement of design work concurrent with the environmental review process.
- In 2001 the Legislature created a new revenue bond financing program. The statute stated "the authorization, sale and issuance of revenue bonds pursuant to this section shall not be deemed an action as such is termed in [SEQR]. These bonds will be issued by the Dormitory Authority, the Empire State Development Corporation, the Thruway Authority, the Environmental Facilities Corporation, and the Housing Finance Agency.
- Occasionally there are exemptions created by statutory language (another category of statutory exemption). The Legislature can create exemptions from the provisions of any law, not just SEQR, and has in fact created SEQR exemptions. Some legislative enactments specifically name SEQR as the exempt law, while at other times there is generalized language to authorize activities with the phrase "notwithstanding any other provision of law to the contrary." This phrase has been construed by judicial decision as providing a legislative exemption from SEQR (for example, see Nature's Trees Inc. v County of Nassau in Landmark Court Decisions on SEQR).
14. What is an "emergency action"?
"Emergency actions" are actions taken in response to an urgent situation. These are actions "which are immediately necessary, on a limited and temporary basis, for the protection or preservation of life, health, property or natural resources" [see 617.5(c)(33).] Classification of something as an emergency action should be done only in extreme cases for true, unforeseeable emergencies, not to justify proceeding with an action despite poor planning by an agency or an applicant.
15. Is there any documentation required for emergency actions?
No. There are no formal requirements in Part 617 for documentation regarding emergency actions. However, any agency classifying an action as an emergency is advised to keep on file a brief statement of pertinent facts concerning the action and its classification. It is recommended that emergency action documentation contain the following:
- date and time when the need for the action was first identified,
- a description of the emergency situation,
- a description of the action including the location and date the action was undertaken,
- a description of how the action will be or has been performed, in the most environmentally sound way practicable under the circumstances, to ensure the least change or disturbance to the environment,
- when the emergency situation ended.
16. If an action was undertaken, funded or approved, or if substantial time, effort or money was expended prior to the effective dates of SEQR, is it Type II?
Yes. These sorts of actions are commonly called "grandfathered" actions and are included as Type II actions. However, because SEQR has been in effect for over 25 years, these actions are becoming increasingly rare. There are some examples of grandfathered actions in Question 3 (617.5(c)(34) of this section of the Handbook.
17. Can a "grandfathered" action be made subject to SEQR?
Yes. Under specific conditions, a project may be "ungrandfathered", or formally determined to be made subject to SEQR, by the Commissioner of DEC at the written request of any person, or on the Commissioner's own motion. To reach the decision to ungrandfather an action, the Commissioner must determine that it is still practicable either to modify the action to mitigate potentially adverse environmental impacts, or to choose a feasible or less environmentally damaging alternative.
18. If an elected local legislative body decides that an action will not be considered, is it necessary to take the action through the SEQR process?
No. If an elected local legislative body, such as a town, city or village board, is presented with a legislative decision such as an application for a zoning change, and the legislative body determines the action will not even be considered, SEQR need not apply. However, if the lead agency wishes to consider any aspect of the proposal for full or conditional approval or denial, SEQR must be applied. If the item is tabled and not considered at a given time, and then later is brought back for a decision, SEQR must be applied at that later time before a final decision is rendered. Note that this exemption is limited to actions of an elected local legislative body.
See also the explanation of Question 3 617.5(c)(27) in this handbook.
19. If an elected local legislative body begins to consider an action, and then decides not to consider it, must the local legislative body complete the SEQR process?
No. A local legislative body faced with an action involving a legislative decision does not have to complete the SEQR process if it has the authority to stop its consideration of the action. This is explained by the fact it would not be making a final decision on the action and therefore the application of SEQR is not required.
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