C. Positive Declarations
In This Section You Will Learn about:
- what is involved in the preparation and issuance of a positive declaration; and,
- information on rescinding a positive declaration.
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1. What is a positive declaration?
A positive declaration, or "pos dec", is a determination by the lead agency that an action may result in one or more significant environmental impacts and so will require the preparation of an EIS before agency decisions may be made regarding the action. The positive declaration starts the EIS process.
2. Are there standards or thresholds for a positive declaration?
Yes. A lead agency must prepare a positive declaration if it finds, based on comparing the information in the EAF to the criteria in the SEQR regulations (see 617.7(c)), that one or more adverse environmental impacts may be significant. The following are also considerations:
- The significant impact(s) must relate to an environmental effect. Economic or social factors do not constitute a basis for a positive declaration.
- The lead agency has taken a hard look at the relevant impacts in assessing the potential for significance.
- The basis for the positive declaration is reasonably consistent with other determinations of significance by the same agency, given similar facts.
- Whether the project, as proposed, includes mitigation measures that would eliminate one or more of the potentially significant adverse impacts, or reduce one or more impacts to a level of non-significance.
3. What information must be contained in a written positive declaration?
The regulations discuss the contents of a positive declaration in 617.12(a). A positive declaration must contain:
- A statement that it is a positive declaration for purposes of Article 8 of the Environmental Conservation Law;
- The name and address of the lead agency;
- The name, address and telephone number of a person who can provide further information;
- The SEQR classification of the project (action);
- A brief and precise description of the nature, extent and location of the action;
- A brief description of potential significant environmental impacts that have been identified to support the positive declaration, and a statement that these impacts will require the preparation of an Environmental Impact Statement (EIS);
- A statement as to whether or not scoping will be conducted in preparation for the EIS;
4. Can the revised model EAFs that became effective on October 7, 2013 also serve as the determination of significance?
Yes. The revised model EAFs were designed to also serve as the determination of significance. If adequately completed, the new model EAFs will meet the test for a legally sufficient determination of significance. Adequate completion means that: Part 1 must contain a description of the proposed action that identifies the whole action being reviewed; Part 2 must identify the relevant environmental impacts; and Part 3 must contain a discussion of why the relevant impacts identified in Part 2 may, or will not have, a significant adverse environmental impact.
5. Where can I find the filing requirements for positive declarations?
Filing requirements for a positive declaration are contained in 617.12(b).
6. Must a positive declaration be made if conditions of approval for the action would eliminate or adequately mitigate the potential significant impacts?
If the agency's jurisdiction contains objective standards that eliminate or adequately mitigate all identified significant adverse environmental impacts, the agency would have a basis for concluding that the action, as ultimately approved, would have no adverse impacts, and could therefore issue a negative declaration. If only some of the identified adverse environmental impacts are addressed by the jurisdictional standards, a positive declaration would still be required.
7. May a positive declaration ever be issued after an action has been initially determined to not have any significant adverse environmental impacts?
Yes, under either of two circumstances:
- If a negative declaration has been issued by an agency with regard to an Unlisted action during uncoordinated review, but a second agency subsequently determines there may be significant adverse environmental impacts from the action, then the second agency may issue a positive declaration after initiating coordinated review. If the first agency has not yet directly undertaken, funded or approved its aspect of the action, it must wait until the EIS process has been completed before making its final decision(s).
- If, after a lead agency has prepared and filed a negative declaration, it is presented with significant new information, a project modification, or other changes in circumstances which lead the agency to conclude that the action may result in one or more significant adverse environmental impacts, the agency must rescind the negative declaration and issue a positive declaration.
8. May a positive declaration be rescinded in favor of a negative declaration?
There are no specific provisions in SEQR for rescission of a positive declaration. Modifications to a proposed action should be treated as alternatives within the EIS. However, it would be reasonable for a lead agency which discovers that its positive declaration was issued in error (eg. based on wrong information) to withdraw the positive declaration and issue a negative declaration that includes an explanation as to why the positive declaration was withdrawn.
9. Must a positive declaration be issued if a draft EIS was submitted in lieu of an EAF?
When a draft EIS is submitted in lieu of an EAF, it must be treated as an expanded EAF for the purpose of determining significance. While a sponsor and other agencies generally anticipate issuance of a positive declaration following submission of a draft EIS rather than an EAF, the lead agency must still evaluate the proposed action relative to the criteria for the determination of significance, and, based on identification of one or more potentially significant adverse environmental impacts, issue a positive declaration. The lead agency will then also need to determine whether the scope of the submitted draft EIS is adequate, and may even conduct formal scoping. (See 617.8.)
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