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A. SEQR Handbook: Type I Actions

In This Section You Will Learn:

  • what is a Type I action;
  • how do we treat Type I actions (EAF, EIS, hearings);
  • what is an Unlisted action and how is it different that Type I and II.

ACTIONS REQUIRING REVIEW

1. What actions require review?

Classes of actions identified as "Type I" or "Unlisted" must be reviewed further under SEQR to determine the potential for significant adverse environmental impacts.

TYPE I ACTIONS

2. What is a "Type I" Action?

A Type I action means an action or class of actions that is more likely to have a significant adverse impact on the environment than other actions or classes of actions. Type I actions are listed in the statewide SEQR regulations (617.4), or listed in any involved agency's SEQR procedures. The Type I list in 617.4 contains numeric thresholds; any actions that will equal or exceed one or more of the thresholds would be classified as Type I.

3. Are there required procedures for the treatment of Type I actions?

Yes. A full Environmental Assessment Form (EAF) must be submitted to the lead agency for all Type I actions, and the lead agency must always coordinate the SEQR review process with other involved agencies.

4. May a short EAF ever be used in place of a full EAF for Type I actions?

No. The short EAF may never be used for Type I actions.

5. Can a lead agency waive or excuse the requirement of filing an EAF?

Yes. The lead agency may waive the requirement for an EAF if a project proposal is accompanied by a draft EIS instead. [see 617.6(a)(4)].

6. What is the decision to prepare an Environmental Impact Statement (EIS) based on?

An EIS is warranted when the lead agency, after review of application documentation related to the proposed action, decides that the action as proposed is likely to cause at least one significant adverse impact to the environment.

7. How are determinations of significance documented for a Type I action?

Both the negative declaration (neg dec) [see 617.2(y)] and positive declaration (pos dec) (see 617.2(ac) must be documented in the record, in writing, and maintained in files that are readily accessible to the public and made available upon request [see 617.12(b)(3)]. A Type I neg dec and pos dec, as well as a conditional neg dec, Notice of Completion of an EIS, EIS and hearing notices must also be filed with the chief executive officer of the political subdivision where the action is located, the lead agency, all involved agencies and persons or parties who have requested a copy [see 617.12(b)(1) ]. A neg dec or pos dec for a Type I action must be published in the Environmental Notice Bulletin (ENB). Notice of a neg dec must also be incorporated into at least one other notice required by law [see 617.12(c)(1) and 617.12(c)(4)].

8. Is an Environmental Impact Statement (EIS) always required for Type I actions?

No. A Type I action carries with it a presumption that it is more likely than an Unlisted action to have a significant adverse impact on the environment and may require an EIS. However, the lead agency must evaluate information contained in the EAF, and additional applications, filings or materials, against the criteria in 617.7 to make a determination of significance for each Type I action. SEQR responsibilities for Type I actions may be met by a well-documented, well reasoned negative declaration.

9. Is a SEQR hearing required for a Type I action?

No. Hearings under SEQR are optional. SEQR hearings are conducted at the discretion of the lead agency after it has accepted a draft EIS for public review. Agencies may have their own requirements under the provisions of other state or local laws regarding when other types of hearings must be held, and a SEQR hearing may be combined with any of those required hearings. (See Environmental Impact Statements - E. SEQR Hearing.)

10. Can the statewide list of Type I actions be supplemented by an agency?

Yes. An agency may expand the statewide Type I list by including any Unlisted action as Type I in its own SEQR procedures under 617.14. Such lists must include the statewide Type I list, be no less environmentally protective than the statewide list, and be adopted consistent with 617.14 (a), (b) and (f). In addition to including specific new items on their Type I lists, agencies may adjust thresholds for statewide Type I actions to make them more protective. These additional actions are Type I for the agency that listed them as such and any other agency involved with the listing agency in a specific action.

Note that Type II, Exempt or Excluded actions may not be placed on an agency's own Type I list.

11. Why can't an agency add statewide Type II actions from 6 NYCRR Part 617 to their list of Type I actions?

Individual agency Type I lists may not include actions from the adopted statewide Type II list [617.5(c)]because such actions have been defined on a statewide basis as never having a significant adverse impact on the environment, and therefore never requiring an EIS under SEQR.

12. What happens if an action is not on the statewide Type I list, but is on an agency's Type I list?

An action considered Type I by one involved agency, whether that agency serves in the role of lead agency or not, becomes a Type I action for all other agencies involved in that action [see 617.4(a)(2)]. However, such action need not be treated as Type I when the agency that created the expanded list is not involved in the action.

For example:

  • The Town Board of Foxborough may, on its list, reduce the Type I threshold for physical disturbance for a non-residential activity from 10 acres to 5 acres.
  • A proposed light industrial park of 7.5 acres would be a Type I action under this scenario if the Town of Foxborough is an involved party or is lead agency. All other involved agencies or parties would likewise treat this action Type I action. It is the responsibility of Foxborough, the agency that reduced the threshold, to notify the other involved agencies (ie. Towns of Deer Haven and Otter Creek) of the change in classification.
  • However, if Foxborough has no discretionary permit involvement for an action such as this, the Towns of Deer Haven and Otter Creek (if involved parties) do not have to use Foxborough's lower threshold of 5 acres. The statewide threshold of 10 acres for physical disturbance for a non-residential activity would apply, and the 7.5 acres would put the action in the Unlisted category, not the Type I category.

13. Do the stricter standards of an involved agency's expanded Type I list apply to the action only when the agency with the expanded list is the lead agency?

No. As stated above in Question 12, as long as the agency with the expanded Type I list is an involved agency, all the standards or thresholds on that local list apply to the action being assessed. Again, it is the responsibility of the agency that altered or reduced the threshold to notify the other involved agencies.

14. How does an agency know if an action is on another agency's Type I list?

The adoption or amendment of an agency's list of Type I actions requires hearing, filing and noticing pursuant to 617.14(f). Prior to the required public hearing on such adoption or amendment, it would be wise for the agency to directly inform all other local or state agencies normally making discretionary decisions within its jurisdiction of its intent to expand the list of Type I actions. Such other agencies could then comment in writing, or at the public hearing, regarding the impact of the Type I list expansion upon their activities.

In addition to filing any new list with the Commissioner of Environmental Conservation for publication in the Environmental Notice Bulletin (ENB), it is both reasonable and prudent for the filing agency to directly inform all potentially affected local and state agencies when it adopts or amends its Type I list.

15. Can the physical location of an action cause an Unlisted action to become a Type I action?

Yes. Unlisted actions may become Type I actions if they are undertaken in, or adjacent to, particular locations specified on the statewide Type I list [see 617.4(b)(8, 9, 10)]. These locations are:

  • sites on, or eligible for listing on, the NYS or National Registers of Historic Places;
  • publicly owned or operated parkland, recreation area or designated open space; and
  • National Natural Landmarks.

In addition, any non-agricultural use that exceeds 25 percent of any Type I threshold in 617.4 also becomes a Type I action.

16. What do the items on the Type I list as presented in 617.4(b) really mean?

The following examples of Type I actions are based on DEC's experience and on court decisions:

617.4(b)(1)

"the adoption of a municipality's land use plan, the adoption by any agency of a comprehensive resource management plan or the initial adoption of a municipality's comprehensive zoning regulations;"

A municipality's or agency's land use, resource management or comprehensive zoning plans will affect the environment of the municipality for years to come. Examples of such plans are park, preserve or other state land master plans; state energy and solid waste management plans. Many potential conflicts between usage of the land and good stewardship can be avoided by applying SEQR analysis carefully at this early stage.

617.4(b)(2)

"the adoption of changes in the allowable uses within any zoning district, affecting 25 or more acres of the district;"

This item covers zoning changes that are initiated by a municipality without a petition by an applicant. For example:

  • Town Zoning Board members in the Town of Maplewood have observed a dramatic rise in commercial business activities being run out of houses in residential neighborhoods in the adjacent Towns of Poplar Grove and Oakfield. This increase in-house cottage industries seems to be driven by an increase in costs related to establishing new business ventures where allowed by zoning Maplewood shares commercial zoning regulations and obstacles as Poplar Grove and Oakfield.
  • After consulting with other members of the governing bodies of the Town of Maplewood, holding a public hearing on the acceptability of commercial business ventures being run from house in residentially zoned neighborhoods, and considering the information and public comment received at the hearing, the Zoning Board changed the zoning of all the districts in Maplewood to prohibit commercial business ventures operating from homes in residentially zoned neighborhoods.

617.4(b)(3)

"the granting of a zoning change, at the request of an applicant, for an action that meets or exceeds one or more of the thresholds given elsewhere in this list;"

This item covers zoning changes that are initiated by the submission of a petition by an applicant(s). For example, if an applicant requests a zoning change for a shopping center from residential to commercial, and proposes an additional1200 new parking spaces, then the whole project would be Type I. The lead agency is responsible for checking all the items listed in 617.4(b) ,and any additional items listed by a local involved agency, to determine if the applicant's request is greater than any of the thresholds listed.

617.4(b)(4)

"the acquisition, sale, lease, annexation or other transfer of 100 or more contiguous acres of land by a state or local agency;"

This includes trades or in-kind exchanges of land between the state or federal government and a municipality, one municipality and another, or between a private citizen, partnership school board or corporation and the municipality. For example:

  • City "A" has an old high school, a middle school, sports fields, and a small nature preserve located along the city's riverfront. The area covers a total of 110 acres.
  • A developer is eager to acquire the land to build a marina plus a large number of condominiums. The developer is willing to buy a large piece of suitable upland acreage, build the city a whole new combined high school and middle school with new sports facilities and whatever else is needed. In return, the developer would get the waterfront property and a contribution from the city that is equal to less than half what it would cost to do necessary rehabilitation of the old schools in their present location.
  • This proposal would definitely be a Type I action.

617.4(b)(5)

"construction of new residential units that meet or exceed the following thresholds:

  • 10 units in municipalities that have not adopted zoning or subdivision regulations;
  • 50 units not to be connected (at the commencement of habitation) to existing community or public water and sewerage systems including sewage treatment works;
  • in a city, town or village having a population of less than 150,000, 250 units to be connected (at the commencement of habitation) to existing community or public water and sewerage systems including sewage treatment works;
  • in a city, town or village having a population of greater than 150,000 but less than 1,000,000, 1,000 units to be connected (at the commencement of habitation) to existing community or public water and sewerage systems including sewage treatment works; or
  • in a city or town having a population of greater than 1,000,000, 2,500 units to be connected (at the commencement of habitation) to existing community or public water and sewerage systems including sewage treatment works;"

The phrase "to be connected at the commencement of habitation to existing community or public water and sewerage systems" means those utility distribution pipes and facilities must be either in place or have completed the environmental review and approval process prior to this proposed construction project. It does not include projects that have, as part of the proposal, the construction of a package sewage treatment facility, a community water system or both such facilities and systems.

Note that the first two items in this section are not tied to the population of the municipality. These two items apply to actions everywhere in the state.

617.4(b)(6)

"activities, other than the construction of residential facilities, that meet or exceed any of the following thresholds; or the expansion of existing non-residential facilities by more than 50 percent of any of the following thresholds:

  • a project or action that involves the physical alteration of 10 acres;
  • a project or action that would use ground or surface water in excess of 2,000,000 gallons per day;
  • parking for 1,000 vehicles;
  • in a city, town or village having a population of 150,000 persons or less, a facility with more than 100,000 square feet of gross floor area;
  • 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;"

This section deals with many of the most common large commercial actions. Note that only the items involving square footage of the facility are contingent upon the population of the municipality. The first three items apply everywhere in the state.

617.4(b)(7)

"any structure exceeding 100 feet above original ground level in a locality that has no zoning regulation pertaining to height;"

This would include, but not be limited to, buildings, signs, towers, power generating windmills, and ski jumps.

617.4(b)(8)

"any Unlisted action that includes a nonagricultural use occurring wholly or partially within an agricultural district (certified pursuant to Agriculture and Markets Law, article 25-AA, sections 303 and 304) and exceeds 25 percent of any threshold established in this section;"

This item does not take into account whether or not there is an actual farm on the land that is proposed to be used for the action. If the action is in the agricultural district as certified in the Ag and Markets Law, it is a Type I action.

Examples:

Type I Threshold Reduced Threshold Project Type I (Y/N)
10 acres 2.5 3 acres Y
1,000 vehicles 250 vehicles 150 vehicles N

617.4(b)(9)

"any Unlisted action (unless the action is designed for the preservation of the facility or site) occurring wholly or partially within, or substantially contiguous to, any historic building, structure, facility, site or district or prehistoric site

  • that is listed on the National Register of Historic Places, or
  • that has been proposed by the New York State Board on Historic Preservation for a recommendation to the State Historic Preservation Officer for nomination for inclusion in the National Register, or
  • that is listed on the State Register of Historic Places (The National Register of Historic Places is established by 36 Code of Federal Regulation (CFR) Parts 60 and 63, 1994 [see 617.17];"

617.4(b)(10)

"any Unlisted action, that exceeds 25 percent of any threshold in this section, occurring wholly or partially within or substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space, including any site on the Register of National Natural Landmarks pursuant to 36 CFR Part 62, 1994 [see 617.17]; or"

617.4(b)(11)

"any Unlisted action that exceeds a Type I threshold established by an involved agency pursuant to section 617.14 of this Part."

If an agency adds a particular threshold to its Type I list, and that agency is an involved agency, the new threshold applies to all involved agencies. It is not necessary for the agency with the expanded Type I list to be the lead agency when reviewing the action.

17. What is meant by the term "substantially contiguous?"

The term "substantially contiguous" as used in both sections 617.4(b)(9) and (10), is intended to cover situations where a proposed activity is not directly adjacent to a sensitive resource, but is in close enough proximity that it could potentially have an impact. Although the term can be difficult to define, the following examples may provide some guidance.

  • Construction of a structure across a residential or downtown two to four-lane street from a building listed on the National Register of Historic Places would be substantially contiguous. However, if the street were a six lane limited access highway with a 100 foot median it would not be substantially contiguous.
  • Construction of a structure on a site that is separated from a City Park by a 50 foot right-of-way would be substantially contiguous.
  • Construction of a residential development overlooking a historically designated bay would be substantially contiguous.
  • Construction of a boat launch ramp 100 feet away from a prehistoric Native American encampment site proposed for designation on the National Register of Historic places would be substantially contiguous.

When considering the issue of what is substantially contiguous, it is important to realize that you are only determining if the action will be classified as Type I or Unlisted, and not determining its significance. If there is question whether an action is substantially contiguous, it is best to treat it as Type I and proceed with the review.

18. Can you illustrate how the threshold reduction requirements in the Type I list are applied to Unlisted actions?

617.4(b)(3), (6) and (10)

A project sponsor requires a zoning variance to build a Go-Kart racetrack across a two-lane road from Oak Orchard Creek Marsh, which is on the Register of National Natural Landmarks (see photo below). The project involves grading of 8 acres and will have parking for 150 cars.

Type I Threshold Reduced Threshold Project Type I (Y/N)
10 acres 2.5 8 acres Yes
Parking for 1,000 cars 250 150 cars No

This project is substantially contiguous to a National Natural Landmark and therefore the thresholds described in 617.4(b)(10) apply. Since this project exceeds the reduced threshold for physical alteration of 10 acres, it must be classified as a Type I action. This is true even though other thresholds are not exceeded, such as the parking for 150 cars which falls below the reduced threshold of 617.4(b)(6). If any part of the action is found to be Type I, the whole action must be classified as Type I.

Had the property not been substantially contiguous to a National Natural Landmark , the action would not have been classified as Type 1. This is because the 8 acres falls below the 10 acre threshold and must therefore be considered an Unlisted action.

In addition to the above, the request for zoning change also triggers Type I treatment for this action [617.4(b)(3)] since a threshold under 617(b) has been exceeded.

617.4(b)(3), (6) and (10)

In a town with a population of 18,000, a project sponsor has submitted a petition to rezone a 7 acre parcel of land adjacent to a county park from residential to commercial to allow the construction of a 30,000 sq. ft. office building with parking for 125 cars.

Type I Threshold Reduced Threshold Project Type I (Y/N)
100,000 sq. ft 25,000 sq. ft. 30,000 sq. ft. Yes
1000 cars 250 cars 125 cars No

The fact that the site is adjacent to publicly owned or operated parkland means that all numeric thresholds on the Type I list are reduced by 75 percent [617.4(b)(10)]. Therefore, the gross leasable area of 30,000 sq. ft. exceeds the reduced threshold for square footage of gross leasable area and it should be classified as a Type I action. Again, this is true even if another factor such as parking for a certain number of cars does not trigger the Type I threshold. If any part of the action is found to be Type I, the whole action must be classified as Type I.

In addition, the request for zoning change also triggers Type I treatment for this action [617.4(b)(3)] since a threshold under 617(b) has been exceeded.

617.4(b)(5) and (10)

Sponsor proposes construction of a 17 unit subdivision with individual wells and septic systems. The site is located across a two lane county road from the Tollgate Tavern, a structure that is listed on the National Register of Historic Places.

Type I Threshold Reduced Threshold Project Type I (Y/N)
Contiguous to NR Property none Across from Tollgate Tavern Yes
50 Units none 17 Units No

This is a case where the size of the project (17 units) does not exceed the threshold of 50 units [as discussed in 617.4(b)(5)(ii)]. However, because the project is substantially contiguous to the National Register property, the action becomes a Type I in accordance with 617.4(b).

If the proposed project had been 62 residential units, the threshold in 617.4(b)(5)(ii) would apply, and the agency would consider the action a Type I, (with or without the proximity to the National Register property).

Regarding nationally recognized properties, do not to confuse properties included, or eligible for inclusion, on the National Register of Historic Places with properties on the Register of National Natural Landmarks. Properties listed on, and eligible for, the National Register of Historic Places triggers the treatment of certain actions as Type I rather than Unlisted (617.4(b)(9). However, inclusion on the Register of National Natural Landmarks triggers a threshold reduction of 75% when actions are adjacent to such properties (discussed in 617.4(b)(10)).

617.4(b)(6)

A private school has purchased an adjacent parcel of land and wishes to enlarge its existing campus to repair and enlarge its track, and expand the number of ball fields and soccer fields that are available for the students. The project will more than double the size of the facility, will involve the regrading of 6.7 acres, and will require additional fill to level some of this acreage.

Type I Threshold Reduced Threshold Project Type I (Y/N)
10 acres 5 6.7 Yes

The fact that this is an expansion of an existing, non-residential facility, means that we must reduce the standard threshold by 50% [see 617.4(b)(6)]. The proposed 6.7 acre alteration is greater than 50% of the 10 acres identified in 617.4(b)(6)(I), so this example would be treated as a Type I action.

617.4(b)(6)

In a town with a population of 172,000, an existing shopping mall is to be expanded by 112,000 sq. ft. with the addition of parking for 280 cars involving the physical disturbance of 4.4 acres of land.

Type I Threshold Reduced Threshold Project Type I (Y/N)
240,000 sq. ft. 120,000 sq. ft. 112,000 sq. ft. No
1000 cars 500 cars 280 cars No
10 acres 5 acres 4.4 acres No

This project is the expansion of an existing, non-residential facility which means that the thresholds contained in 617.4(b)(6) are reduced by 50 percent. Since this project does not exceed any of the reduced thresholds, it must be classified as an Unlisted action.

617.4(b)(6) and (8)

In a town with a population of 32,000, construction of a 15,000 sq. ft. office building with parking for 120 cars involving the physical disturbance of 2.8 acres of land is proposed in a certified agricultural district.

Type I Threshold Reduced Threshold Project Type I (Y/N)
100,000 sq. ft. 25,000 sq. ft. 15,000 sq. ft. No
1000 cars 250 cars 120 cars No
10 acres 2.5 acres 2.8 acres Yes

This is a nonagricultural use proposed for a site located in a certified agricultural district, which means that all numeric thresholds on the Type I list are reduced by 75 percent [617.4(b)(8)].

Since this project exceeds the reduced 25% threshold for physical disturbance, it must be classified as a Type I action [per 617.4(b)(6)(I)]. As previously stated, the fact that other thresholds are not triggered does not keep this action Unlisted. Passing only one threshold is sufficient to consider the action a Type I.

UNLISTED ACTIONS

19. What is an "Unlisted" action?

An Unlisted action is one that is not included in statewide or individual agency lists of Type I or Type II actions.

Unlisted actions are the largest category of actions subject to review under SEQR. As may be implied from their name, no list has been made of them, in part because it is impossible to anticipate in advance every potential discretionary decision of government. Unlisted actions may range from very minor zoning variances to complex construction activities falling just below the thresholds for Type I actions, or from the granting of minor permits to the adoption of major regulations. For example:

  • Using the 10 acre physical disturbance threshold for activities other than residential construction [617.4(b)(6)(I)] - a project that would disturb 9.9 acres of land would be an Unlisted action, as would a project that would disturb 0.1 acre of land.
  • Using the 100 acre threshold for acquisition, sale, lease, annexation or other transfer of land [617.4(b)(4)] - the acquisition of 95 acres of land and the acquisition of 1 acre of land would both be Unlisted actions.
  • Using the 25 acre threshold for a change in the allowable uses within a zoning district [617.4(b)(2)] - construction of a private school on a 3 acre site within a zoning district that does not list the construction as an allowable use would be an Unlisted action.

20. Can an Unlisted action involve more than one agency?

Yes. The number of agencies involved has no bearing on whether an action is classified as Type I or Unlisted. SEQR review by all involved agencies does not change just because the action type (I, II or Unlisted) is different. The classification of an action is a requisite component of each agency's SEQR responsibility.

21. How do SEQR review procedures differ between Unlisted and Type I actions?

Many of the same basic procedures generally apply to Unlisted actions in conducting SEQR as apply to Type I actions.

  • An environmental assessment must be conducted for both Unlisted and Type I actions and a determination of significance made.
  • Both types of actions require an assessment of possible environmental concerns. A short Environmental Assessment Form (EAF) may be used as the basis for a determination of significance for Unlisted actions. A Full EAF is required for a Type I action and may be used for Unlisted actions at the discretion of the Lead Agency;
  • Coordinated review is not required for an Unlisted action. The lead agency must always coordinate the SEQR review process with other involved agencies when considering a Type I action;

22. Are there ever reasons that an agency may treat Unlisted actions as Type I actions?

Yes. Type I procedures can be used for the review of an Unlisted action at any time, at the discretion of the lead agency. Examples of when this might occur are:

  • there are potential adverse impacts that could be more thoroughly investigated by using a Full EAF and coordinating review; or
  • an agency has special concerns regarding a sensitive resource within its jurisdiction; or
  • an agency is uncertain about the concerns of other involved agencies and decides to coordinate review; or
  • the action falls just below the applicable Type I threshold; or
  • anytime the agency judges that the Type I procedures would be more helpful.

If an agency finds that it is frequently using the Type I procedures for particular types of Unlisted actions, the agency should consider adding these actions to its own Type I list as provided for in 617.4(a)(2).

23. How do Unlisted and Type I actions differ if a negative declaration is reached?

If the determination is that there will not be significant adverse environmental impacts, for either an Unlisted or Type I action, and a negative declaration is written, the review process terminates and the decision on the action may be made.

Notice requirements for negative declarations are less extensive for Unlisted action than for Type I actions (see 617.12 and the questions on Notification and Filing; in the section on SEQR Housekeeping):

  • Unlisted negative declarations are not required to be published or noticed.
  • Type I negative declarations are required to be noticed, filed and published.

Notice, filing and publication requirements for Type I actions are listed in section 617.12.

24. How do Unlisted and Type I actions differ if a positive declaration is reached?

If the review of either an Unlisted or Type I action determines that there may be one or more significant adverse environmental impacts, a positive declaration is required, and an EIS may be necessary.

Unlisted actions do not carry with them the same likelihood of requiring an EIS that is associated with Type I actions. A somewhat less rigorous, and possibly quicker, review option may be followed.

A Conditioned Negative Declaration (CND) procedure may be applied in some situations to Unlisted actions involving applicants [ See 617.7(d) and the section on CNDs in the chapter on the Determining Significance Process], or, if an EIS is required, it must be completed and accepted by the lead agency before agency findings can be made and decisions on the actions taken.




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