In This Section You Will Learn:
- what is meant by segmentation;
- how to deal with phases; and
- how to deal with different funding sources for the same overall project.
1. What is Segmentation?
In Part 617.2(ag), (leaves DEC website) segmentation is defined as the division of the environmental review of an action so that various activities or stages are addressed as though they were independent, unrelated activities needing individual determinations of significance. Except in special circumstances, considering only a part, or segment, of an overall action is contrary to the intent of SEQR.
There are two types of situations where segmentation typically occurs. One is where a project sponsor attempts to avoid a thorough environmental review (often an EIS) of a whole action by splitting a project into two or more smaller projects. The second is where activities that may be occurring at different times or places are excluded from the scope of the environmental review. By excluding subsequent phases or associated project components from the environmental review, the project may appear more acceptable to the reviewing agencies and the public.
2. What is meant by reviewing a "whole action"?
Agencies are often faced with the problem of how to address a complex action involving a number of related components that may not be presented or applied for at the same time. Typically, this may involve a series of applications for the same project (zone change, extension of sewer service, subdivision approval) or phases (residential or mixed use development to be constructed over a number of years). It also may involve separate project sites (for example, a resource recovery facility with bypass disposal at another location). Proposals or parts of proposals that are related to each other closely enough to be, in effect, a single course of action should be evaluated as one whole action.
Reviewing the "whole action" is an important principal in SEQR; interrelated or phased decisions should not be made without consideration of their consequences for the whole action, even if several agencies are involved in such decisions. Each agency should consider the environmental impacts of the entire action before approving, funding or undertaking any specific element of the action [see subdivision 617.3(g) (leaves DEC website) regarding "Actions"].
3. What is the basic test for segmentation?
When trying to determine if segmentation is occurring agencies should consider the following factors. If the answer to one or more of these questions is yes, an agency should be concerned that segmentation is taking place.
- Purpose: Is there a common purpose or goal for each segment?
- Time: Is there a common reason for each segment being completed at or about the same time?
- Location: Is there a common geographic location involved?
- Impacts: Do any of the activities being considered for segmentation share a common impact that may, if the activities are reviewed as one project, result in a potentially significant adverse impact, even if the impacts of single activities are not necessarily significant by themselves.
- Ownership: Are the different segments under the same or common ownership or control?
- Common Plan: Is a given segment a component of an identifiable overall plan? Will the initial phase direct the development of subsequent phases or will it preclude or limit the consideration of alternatives in subsequent phases?
- Utility: Can any of the interrelated phases of various projects be considered functionally dependent on each other?
- Inducement: Does the approval of one phase or segment commit the agency to approve other phases?
4. Is segmented review ever acceptable under SEQR?
There are some limited circumstances where a segmented review may be justified. For example, the following circumstances, when considered together, may warrant segmentation when a project has several phases:
- information on future project phase(s) is too speculative;
- future phase(s) may not occur;
- future phase(s) are functionally independent of current phase(s).
If circumstances suggest that a segmented review is appropriate, such justification must be clearly noted in the determination of significance and in any subsequent EIS by providing supporting reasons and demonstrating that such review will be no less protective of the environment. For example, functionally independent projects might be capable of segmented review.
5. Who is responsible for making the decision on proceeding with a segmented review?
The lead agency is responsible for making this decision. The project sponsor and other involved agencies may supply information to assist the lead agency, but ultimately it is the responsibility of the lead agency to make an independent assessment of the actual extent scope of the project and to document the decision to undertake a segmented review. Documentation is important because segmented reviews are susceptible to challenge.
6. Is an agency required to segment a review if the project sponsor shows that segmentation would be possible?
No. Segmentation is contrary to the intent of SEQR. The decision to segment a review is at the discretion of the lead agency. The decision to segment a review must be supported by documentation that justifies the decision and must demonstrates that such a review will be no less protective of the environment [see Question 5 of this section for additional details]. However, the "separate" actions that a project sponsor may cite as being independent, unrelated activities needing individual determinations of significance, more often than not are linked either through application or proximity and therefore may be subject to legal challenge if a segmented review was to proceed
7. How might an agency address uncertainty about later phases?
All known or reasonable anticipated phases of a project should be considered in the determination of significance. If later phases are uncertain as to design or timing, their likely environmental significance can still be examined as part of the whole action by considering the potential impacts of total build-out (for example, based on sketch plans or existing zoning). If, after completion of the review, it can be determined that the subsequent phases will cause no significant adverse impacts or that the impacts can be mitigated, initial phases can be approved and no further analysis under SEQR will be necessary.
If substantial changes to the project are proposed later, such changes should be evaluated and a new determination of significance made. If an EIS was produced for earlier phases, either a supplemental impact statement or revised SEQR findings statement may be needed.
8. If projects are linked but will have separate sources of funding can they be reviewed separately?
No. It is common in many projects to have a mix of funding sources (for example, local highway construction, affordable housing or economic development). If the various funding sources support the same project, or a group of projects that are part of the same overall action, then they should be examined in a single environmental review.
9. How does an agency determine if the proposed project is part of a larger plan?
Sometimes the project sponsor has a definite plan for future development, and other times the future projects are merely wishful thinking. It is up to the lead agency to determine if the project is the "whole action" or merely a part or segment of the action that should be reviewed. If there is evidence of a plan, then there is a strong presumption that the larger project is the "whole action" and should therefore be the subject of the environmental review. Some examples where the larger project is the "whole action" are: a proposed industrial park of which the instant project is just the initial tenant, a commercial strip mall development that allows for future expansion, a residential subdivision that provides for internal road connections to additional lands under the control of the project sponsor, or a mining project that will prepare the site for a subsequent development proposal.
10. Why is the claim of segmentation frequently raised?
In promoting a project, sponsors frequently provide information and make claims regarding subsequent phases or related development that may follow the initial project. The sponsor's goal may be to convince the reviewing agency that their project will serve as an engine for further economic development in the an area or municipality, or that it will be only the first of several proposed developments that the sponsor will be constructing in the same area.
When it comes time for the project to be formally submitted to the reviewing agencies for approval, however, the project may not reflect the scope and scale of the initial public disclosures. The general public, especially project opponents, quickly pick up on this issue if the lead agency chooses to review the reduced proposal. The public may also want to know about plans for the expansion of the initial proposal, even though plans for expansion have never been discussed. An example of when this might happen would be when a proposal depicts the development of a 60 acre site and it is discovered that the applicant actually owns the adjoining 300 acres. In such cases, it is not unreasonable to question the plans for the adjoining acreage.
11. How have courts treated segmentation claims?
Court decisions on this topic are very dependent on the specific facts in each case, resulting in a "mixed bag" of outcomes. Numerous decisions have required, or at least allowed, lead agencies to consider related projects in one environmental review process. However, there are also several court cases that have upheld agency decisions to perform separate reviews of related projects. For some key cases, see the Segmentation section in Chapter 9: Notable Court Decisions.
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