B. Determining Significance
In This Section You Will Learn:
- what is involved in making a determination of significance;
- how to assess direct impacts, related impacts, primary and secondary impacts, short term and long term impacts, and cumulative impacts; and,
- options to address non quantitative impacts such as visual, community character, growth inducement, economic cost and social impact.
1. What is a determination of significance?
A determination of significance is the most critical step in the SEQR process. This is the step in which the lead agency must decide whether or not a proposed Type I or Unlisted action is likely to have a significant adverse impact upon the environment. If the lead agency finds one or more significant adverse environmental impacts, it must prepare a positive declaration identifying the significant adverse impact(s) and requiring the preparation of an Environmental Impact Statement (EIS). If the lead agency finds that the action will have no significant adverse impacts on the environment, no EIS is necessary and the lead agency must prepare a negative declaration.
2. What is "significance"?
The SEQR regulations recognize the subjectivity of the term "significance".
Two key characteristics of possible impacts that should be considered in determining significance are "magnitude" and "importance". Magnitude assesses factors such as severity, size or extent of an impact. Importance relates to how many people are going to be impacted or affected by the project; the geographic scope of the project; duration and probability of occurrence of each impact; and any additional social or environmental consequences if the project proceeds (or doesn't proceed). Each impact of an action must be judged by these two characteristics. Generally, bigger impact (larger "magnitude") projects are more likely to need more detailed analysis. The characteristic of "importance" requires us to look at an impact in relation to the whole action. The short or long term or cumulative nature of the impacts also need to be considered.
For example, a bridge is proposed to cross a river. Potential erosion during construction could be large in magnitude. If the stream into which the eroded soil would fall is presently a relatively "muddy" stream, already carrying large quantities of sediment, the addition of such a temporary load during construction would likely not be important. However, if the same amount of material were to wash into a clear trout stream, particularly during or immediately following spawning, or to settle downstream in a productive wetland, this impact should be viewed as more important because of the high value of the wetland and trout stream resources.
The SEQR regulations provide an orderly, comprehensive process for identifying those actions that may be significant. However, SEQR allows implementing agencies the flexibility to accommodate differing community settings and perceptions in assigning importance. SEQR thus recognizes that different lead agencies in different locations in the state, using the same techniques and information, may arrive at different determinations about the environmental significance of a proposed action.
For example, a two hundred unit apartment project which may be environmentally significant in a small town, may be insignificant if it were to be built in a large urban center. Similarly, traffic, sewer, water and waste disposal issues may be of little concern in a city, but may be major problems in a small town.
3. What factors must a lead agency consider in making a legally sufficient determination of significance?
In making a legally sufficient determination regarding significance, the lead agency must:
- identify all relevant environmental impacts,
- thoroughly analyze these potential impacts, and
- provide a written explanation of its reasoning in concluding that the proposed action may cause, or will not cause, significant adverse environmental impacts (see 617.7).
The information and reasoning in a determination of significance should be presented in a logical, comprehensive, understandable manner. A legally sufficient determination of significance implies that a lead agency has in its possession, and can demonstrate that it has considered at least the following:
- the entire action (see Segmentation);
- the environmental assessment form (EAF);
- any other information provided by the applicant, including the underlying application;
- the criteria for determining significance found in 617.7(c) ; and
- any input from involved and interested agencies, interested organizations or other groups of people and the general public.
Furthermore, the reasoning used by the lead agency in concluding that no significant adverse impacts will be caused is essential in justifying a negative declaration. Also note that "sufficiency" is distinct from the term adequate, which is found later in SEQR (617.9(a)(2)) in the discussion of assessing whether or not a DEIS is ready for public review.
In addition, the lead agency is encouraged to review its files on previous significance determinations involving similar projects or geographic locations. It is important to remember that each determination of significance an agency makes may provide guidance for future determinations. To some degree these determinations set precedents and reflect community values. Also, existing resource inventories that provide information about significant environmental factors should be considered.
4. Are there specific criteria for determining the significance of an action?
Yes. The criteria are listed in 617.7. These criteria assist the lead agency by focusing attention on a wide range of important environmental considerations.
5. May other criteria than those listed in 617.7 be used to determine significance?
Yes. The list in 617.7(c) is illustrative, not exhaustive. Agencies may develop additional criteria to those listed in 617.7(c), especially if past experience has indicated the importance of particular considerations with respect to actions frequently encountered by an agency. Such additional criteria should be developed and adopted in accordance with rules governing individual agency implementation of SEQR, see 617.14(e).
6. May an action with one or more significant adverse environmental impacts receive a negative declaration if there are balancing social and economic benefits?
No. The determination of significance is a threshold determination which should not balance benefits against harm, but rather should consider whether a proposal has any probable significant adverse impacts. Such balancing may only be done in Findings following an EIS.
For example, a sewage treatment plant designed to improve the environment may also have significant adverse impacts due to its proposed location. In this circumstance, the lead agency should not consider the benefits of the plant in making a determination of significance, but should make a positive declaration on the action. However, any mitigation measures proposed by the applicant as part of the action should be considered by the lead agency in seeking ways to reduce or eliminate environmental impacts.
7. Can regulatory permitting conditions and normal administrative procedures (such as a Town Engineer reviewing construction plans for adequacy) be considered mitigation and thereby affect the determining of significance?
No. There may be situations where a developer agrees to make certain modifications to a project while it is being reviewed and this should not be construed as mitigation. In such cases, however, the need for mitigation may be lessened. Likewise, these modifications should not be construed to be a substitute for a thorough assessment of the project for significance of impact.
In Shawangunk Mountain Environmental Association v. Planning Board of the Town of Gardiner (1990) , the court found that certain project conditions, agreed to by the developer, which the planning board used as a basis for a negative declaration did not justify the negative declaration that was issued. While the Court found that changes to the project eliminated some impacts, the overall scope of the project was not substantially reduced and the conditions did not clearly eliminate the issues of environmental concern.
8. Can an involved agency supersede the lead agency's determination of significance in coordinated review?
No. When coordinated review has occurred for Type I or Unlisted actions, the determination of significance by the lead agency is binding on all involved agencies.
9. Can a negative declaration issued during uncoordinated review be superseded by another agency determination that an adverse impact may occur?
Yes. In uncoordinated review, if one agency issues a negative declaration, another involved agency also conducting uncoordinated review may supersede it by making a positive declaration. As provided in 617.6(b)(4)(ii), if an agency conducting an uncoordinated review determines that an action may have a significant adverse impact, it must then coordinate review with other involved parties. At this point, the uncoordinated review ceases and coordinated review is initiated. All agencies that have not yet made a final decision on the proposed action must wait until completion of the SEQR process.
10. How much time does the lead agency have to make a determination of significance?
In cases involving applicants for funding or approvals, the lead agency must make a determination of significance within twenty calendar days of its receipt of an EAF and application and other reasonably necessary information, or within twenty calendar days of its establishment as lead agency, whichever comes last. For direct actions by an agency, where there are no other parties involved and no "triggering" of the time clock by submission, circulation or receipt of an EAF, a determination of significance should be made as early as possible in the formulation of plans for an action, and before any authorization is granted which commits an agency to a particular action.
11. Must an EIS be prepared for all Type 1 actions?
No. Type I actions do not automatically require an EIS. Conversely, Unlisted actions are not automatically non-significant. The lead agency must determine the environmental significance of Type I and Unlisted actions on a case-by-case basis.
B. Types of Impacts
12. Are the immediate impacts of an action all that must be considered in determining significance?
No. An environmental assessment and a determination of significance must include consideration of the potential for primary (direct) and secondary (indirect) impacts, long and short term impacts and cumulative impacts of an action.
13. What is meant by primary and secondary impacts?
A primary (direct) impact is one that occurs at the same place and time as the proposed action and that is likely to occur as an immediate result of the action. For example, the construction and operation of an office building may create traffic impacts from heavy equipment operation, as well as additional commuting traffic.
A secondary (indirect) impact is one which is reasonably foreseeable, occurs at a later time or at a greater distance, and is likely the result of the action. There should be a reasonably close causal relationship between the action and the environmental impacts. Secondary impacts can be of a wide variety and may include growth inducing effects and other effects related to changes in the pattern of land use, population density or growth rate, and air and water and other natural systems, including ecosystems. For example, the construction and operation of an office building may result in off-site construction of service facilities or related businesses. Widening, crowning and paving of a narrow secondary road that is a local "short cut," may result in increased development of the lands along the road. Changes in population patterns or community character likely to be induced by a project have been held by the courts to be relevant concerns in environmental review (see Chinese Staff and Workers Association et al., v. City of New York et al, 1986).
14. What are short and long term impacts?
Short term impacts are the immediate and temporary result of an action, for example, noise, dust and truck traffic during construction of a building. Long term impacts are the continuing impacts from an action over time, for example, impacts to community health from the long term operation of an industrial plant with substantial air emissions or the commuting traffic resulting from the completion of a new office building.
In identifying and evaluating long term impacts, it is important to understand that some impacts may have to be assessed in terms of significance over time. For example, while local water supply may be adequate to support the initial stages of a residential development, the supply may be inadequate to support that development at full build out
15. How far into the future must a lead agency look in making a determination of significance?
There are no prescribed standards, but an environmental assessment must be limited to impacts that are probable, not speculative. Any long term impact of an action which is reasonably foreseeable must be considered. Potential for re-occurrence, frequency and duration of occurrence may also be factors for determining significance over time. Also, if the reasonably foreseeable potential impacts could be severe, even a low probability impact should be considered.
- For example, if a developer is planning to build a subdivision in two phases, it is reasonable for the lead agency to assume that the second phase will be built to consider the impacts of full build out of both phases on stormwater runoff, traffic patterns, water and sewer capacity, and nearby wetlands or protected streams.
- On the other hand, if a developer owns a large parcel of land, but applies for approval to develop only a small portion of the property and asserts they have no additional plans for the remainder of the property, it may not be reasonable for the lead agency to require plans for a full build out. However, a lead agency may generally address impacts as if the land were to be fully developed per local zoning.
16. What are cumulative impacts?
Cumulative impacts occur when multiple actions affect the same resource(s). These impacts can occur when the incremental or increased impacts of an action, or actions, are added to other past, present and reasonably foreseeable future actions. Cumulative impacts can result from a single action or from a number of individually minor but collectively significant actions taking place over a period of time. Cumulative impacts do not have to all be associated with one sponsor or applicant. They may include indirect or secondary impacts, long term impacts and synergistic effects.
17. When must cumulative impacts be assessed?
Cumulative impacts must be assessed when actions are proposed, or can be foreseen as likely, to take place simultaneously or sequentially in a way that the combined impacts may be significant. As with direct impacts, assessment of cumulative impacts should be limited to consideration of reasonably foreseeable impacts, not speculative ones.
Assessment of potential cumulative impact assessment should be done under the following circumstances:
- If two or more simultaneous or subsequent actions themselves are related because
- one action is an interdependent part of a larger action or included as part of any long range plan;
- one action is likely to be undertaken as a result of the proposed action or will likely be triggered by the proposed action;
- one action cannot or will not proceed unless another action is taken or one action is dependent on another; or
- If the impacts of related or unrelated actions may be incrementally significant and the impacts themselves are related.
Another factor in examining whether two or more actions should be considered as contributing to cumulative impacts, is whether the two actions are in close enough proximity to affect the same resources. Examples include construction along a single road segment, hydrological connections, or demands on the same water or sewer system.
18. What are some examples where cumulative impacts should be considered?
- A single action carried out in steps or phases, such as the construction of an industrial park that will gradually add separate businesses that discharge to a single receiving water, the construction of a residential subdivision in phases (each increasing the traffic impacts at a common access point), or the rebuilding of a highway including road widening and interchange reconfiguration.
- A single action inducing one or more secondary actions, e.g., the expansion of a public water system inducing residential subdivision of an area previously constrained from growth due to the unavailability of potable water.
- Two or more different actions occurring simultaneously e.g., placing of fill in a wetland and discharging wastewater to the same wetland.
- Two or more different types of actions carried out in a planned sequence, e.g., the expansion of a sewage treatment facility in preparation for, and followed by the development of a new residential area;
- Repetition of the same type of impact, e.g., placing of fill in a wetland by several different entities, or the construction of several residential developments that will obtain water from the same source.
- It is reasonable to assume that vacant lots in a growing development will be filled in. This may be important in an area subject to severe erosion, an area with tidal or freshwater wetlands, or an area not served by a public water system that has an overtaxed aquifer below it.
19. Is there a threshold for, limitations to, or boundaries on the number of actions for which cumulative impacts must be considered?
There is no minimum or maximum number. If two or more actions affecting the same resource(s) are proposed at about the same time, or one after the other, their cumulative impact may be significant. If a third action is subsequently proposed, the need to examine cumulative impact may be even more important. For example, multiple developments using the same road segment, sewage treatment plant or water supply may incrementally increase existing impacts to a significant level.
Courts, however, have set some limits and standards for when a lead agency may consider cumulative impacts. The lead agency must clearly articulate one or more specific basis for requiring cumulative impact assessment:
- the actions themselves can be demonstrated to be clearly related;
- two or more separate actions can be demonstrated to be likely to cause specific impacts on a specific, single resource; or
- two or more actions are proposed within a designated protected resource area for which an adopted management plan exists.
Note that in all such cases, the lead agency must clearly articulate the functional connections of potential impacts to resources, as courts have generally not accepted proximity alone as a basis for requiring cumulative impact analysis.
20. Are there any other limitations on the consideration of cumulative impacts?
Some court cases have ruled on situations that appeared to be candidates for cumulative impact analysis, but which were found not so due to lack of an adopted governmental long-range plan. In Long Island Pine Barrens Society, Inc. v. Brookhaven (1992), for example, the petitioners commenced a proceeding to require that 224 discrete development projects spread across three Long Island towns be made to consider their cumulative environmental impact on the Long Island Pine Barrens. The court held that the adoption of various protective laws, policies and directions to prepare a long-range plan for the Pine Barrens was not a sufficient basis to tie the 224 developments together. The Court stated that the existence of a broadly conceived policy regarding land use in a particular locale is simply not a sufficiently unifying ground for tying otherwise unrelated projects together and requiring them to be considered in tandem as 'related' proposals...". Also, in another instance, the Appellate Division, Second Department, citing the Long Island Pine Barrens case, held that just because various projects were proposed in the same critical environmental area that fact did not by itself mandate the Town of Riverhead to evaluate and consider the cumulative impacts of the projects together. See North Fork Environmental Council, Inc. v. Janoski (1993).
21. Does a Lead Agency have any other mechanism to help it address cumulative impacts?
Yes. Within SEQR, a lead agency may use a Generic Environmental Impact Statement (GEIS) to address impacts of multiple actions within a defined geographic area. (See 617.10).
In addition, preparation of a municipal comprehensive plan plus adoption of local zoning consistent with that plan, allows a municipality to anticipate potential cumulative impacts and design local land use rules to avoid those impacts.
22. What is a synergistic effect and how must it be treated for SEQR purposes?
Synergistic environmental impacts are caused by an interaction between two or more direct adverse environmental impacts, where the combined impacts are more severe than the sum of the individual effects. For example, nitrogen oxides and sulfur dioxide air contaminants have been demonstrated to have a more severe combined effect, as "acid rain", on certain vegetation than either of these contaminants individually. When synergistic effects are likely to be of environmental importance, they must be considered in a determination of significance.
23. Are there impacts on non-physical resources that should be considered when determining significance?
Yes. There may be environmental impacts related to various community or regional values not necessarily associated with physical resources. Examples would include visual impacts, impairment of community character, growth inducement and social and economic conditions which are discussed below.
24. Why should the significance of visual impacts be considered under SEQR?
The courts have upheld inclusion of effects on scenic views as an element of the SEQR review process, for example, in the case of a new radio transmission tower proposed to be constructed near the F.D. Roosevelt estate on the Hudson River (see WEOK Broadcasting Corp. V. Planning Board of Town of Lloyd 1992).
25. What methods or resources may a lead agency use in assessing potential visual and aesthetic impacts?
Because the quality of an aesthetic resource cannot be determined by a precise formula and because opinions may vary concerning the evaluation of visual impacts, there exists a widespread, but erroneous, notion that aesthetics analysis is hopelessly subjective. Instead, research has clearly established that landscape preference and perception are not arbitrary or random, so that along with some variability there is substantial regularity in the perceptions of significant adverse and beneficial visual impacts. It is upon this regularity of human judgement concerning aesthetics that objective decision-making depends.
Developing an objective process for considering visual impacts is most effective if undertaken before controversial projects appear. To establish or clarify values, policies and priorities related to existing visual resources, agencies or municipalities should conduct an inventory of visual resources within their jurisdictions. Such surveys need not be elaborate, but are a recommended feature of any comprehensive planning process that the agencies or municipalities may undertake. The prime objective is to be proactive and identify visual resources that are significant within that jurisdiction and could be adversely affected by potential development.
To evaluate potential visual impacts likely to result from individual proposed projects, the Visual EAF Addendum [(Appendix B of 617.20) (pdf, 936 kb)] may be used by the lead agency to supplement the EAF. The Visual EAF Addendum form highlights the objective components of visual impact analysis, such as:
- Whether the value of the aesthetic resource has been established by designation? For example: State Park, designated scenic vista, designated open space, etc.
- How many people could observe the potential impacts?
- Under what circumstances or contexts would the impacts be visible?
- How far away from the aesthetic resource is the viewer?
When the responses to these and other pertinent questions are compiled about potential impacts to aesthetic resources, the lead agency will know, for example, whether the resource is designated as important, is viewed by thousands of people annually when they use the resource (e.g. park), or if the potential impact is adjacent to that resource. Based on this systematic assessment, the lead agency will then be able to consider visual impacts in developing its determination of significance.
26. Has DEC developed any additional resources for assessing visual impacts?
The DEC guidance policy "Assessing and Mitigating Visual Impacts" (pdf, 302 kb) was developed to provide direction to Department staff for evaluating visual and aesthetic impacts generated from proposed facilities. The policy and guidance defines what visual and aesthetic impacts are; describes when a visual assessment is necessary; provides guidelines on how to review a visual impact assessment; differentiates State from local concerns; and defines avoidance, mitigation and offset measures that eliminate, reduce, or compensate for negative visual effects.
The cornerstone of the DEC guidance document is its inventory of aesthetic resources of statewide or national significance. The scenic and aesthetic resources identified in the guidance have all been protected by law or regulation, and are therefore special places that the public has deemed worthy of protection due to the inherent aesthetic value associated with the resource. For example, one category is state and national parks, which have been established by government to protect unique resources, and are accessible for use and appreciation by the public.
The DEC guidance defines State regulatory concerns, and separates them from local concerns. However, the DEC guidance may be used as a model by other agencies or municipalities. Once local authorities have officially identified locally important visual resources, the guidance may be used to assist a lead agency in systematically evaluating potential visual and aesthetic impacts from a proposed development.
27. How do visual impacts differ from community character impacts?
Visual impact assessment considers a single class of resource. While visual resources may contribute to a community's perception of its character, a number of other resources should also be assessed or evaluated to enable a more thorough description of a community's character.
28. Why is "community character" an environmental issue?
The Legislature has defined "environment" to include, among other things, "...existing patterns of population concentration, distribution or growth, and existing community or neighborhood character" (see ECL 8-0105.6). Court decisions have held that impacts upon community character must be considered in making determinations of significance even if there are no other impacts on the physical environment.
29. How can you determine whether an impact upon community character may be significant?
Community character relates not only to the built and natural environments of a community, but also to how people function within, and perceive, that community. Evaluation of potential impacts upon community or neighborhood character is often difficult to define by quantitative measures. Courts have supported reliance upon a municipality's comprehensive plan and zoning as expressions of the community's desired future state or character. (See Village of Chestnut Ridge v. Town of Ramapo, 2007.) In addition, if other resource-focused plans such as Local Waterfront Revitalization Plans (LWRP), Greenway plans or Heritage Area plans have been adopted, those plans may further articulate desired future uses within the planning area.
In the absence of a current, adopted comprehensive plan, a lead agency has little formal basis for determining whether a significant impact upon community character may occur.
- Examples of actions affecting community character that have been found to be significant include: the introduction of luxury housing into a working-class ethnic community, and construction of a prison in a rural community.
- Examples of actions found not to be significant include low income housing and shelters for the homeless proposed to be located within existing residential areas.
30. What is growth-inducement?
Some activities will encourage or lead to further increases in population or business activity. This type of secondary impact is called growth inducement. When conducting an environmental assessment, it is important to recognize activities which may induce growth because a consideration of the whole action must examine likely impacts of such growth, such as the need for additional sewer, water and other services; increased traffic congestion; or accelerated loss of open space.
31. What are some examples of growth inducement?
The following are examples of how actions may induce growth-related impacts:
- The extension of public utilities such as sewer and water into an agricultural area, previously not serviced by these utilities, may encourage non-farm development and undermine the area's agricultural base.
- The construction of a new prison in a rural community may result in the construction of single family homes and support industries or businesses to serve the prison staff.
- The construction of a new interchange on a limited access highway may cause the construction of fast food establishments, motels and gasoline stations catering to highway travelers.
- The expansion of an existing sewage treatment plant may result in the construction of additional single family homes and businesses within the plant's service area.
- The stocking of a species of game fish in a particular water body may increase the number of anglers using that water body, which may lead to the construction of businesses catering to those anglers.
32. How do you assess the significance of growth inducement?
The method for determining the significance of an induced impact is the same as for any other impact. First, consider the likelihood that the proposed action may induce further development. Then, identify the type of activities and the impacts that would result and determine whether any of them may have a significant environmental effect. When discussing potential growth inducement, it is desirable to quantify or at least estimate the anticipated growth, and to document predictions and data.
33. Is growth inducement always an adverse impact?
No. Growth in and of itself is not always negative. If the growth induced by a project is consistent with the applicable zoning and the community's comprehensive plan, it may be viewed as a positive impact that has been planned for and beneficial to the community.
34. May determinations of significance be based on economic costs and social impacts?
No. A determination of significance is based on the regulatory criteria relating to environmental significance. If an EIS is required, its primary purpose is to analyze environmental impacts and to identify alternatives and mitigation measures to avoid or lessen those impacts. Since the definition of "environment" includes community character, these impacts are considered environmental. However, potential impacts relating to lowered real estate values, or net jobs created, would be considered economic, not environmental. Social and economic benefits of, and need for, an action must be included in an EIS. Further, in the findings which must be issued after a final EIS is completed, environmental impacts or benefits may be balanced with social and economic considerations.
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