D. Negative Declarations
In This Section You Will Learn about:
- what is a negative declaration;
- how to reach the conclusion that a project should be given a negative declaration; and,
- circumstances under which a negative declaration can be amended or rescinded.
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1. What is a negative declaration?
A negative declaration or "neg dec", is a determination by the lead agency that an action will not result in a significant adverse environmental impact and consequently no EIS will be prepared.
2. Are there standards or thresholds for a negative declaration?
Yes. In order for a lead agency to issue a negative declaration, it must be able to demonstrate that the action will not have a significant adverse environmental impact. In making decisions on significance, the lead agency must take a hard look at all relevant impacts of the whole action, not just those within its immediate jurisdiction, and document its reasoning in writing.
3. Can a negative declaration be based on results of future studies about potential impacts?
No. A negative declaration must be based on the facts available to the lead agency at the time of the determination. Issuing a negative declaration and then requiring the project sponsor to conduct studies to determine the magnitude of an impact is improper. At the time the lead agency makes its negative declaration, the lead agency must have sufficient information to show that no impacts will be significant.
4. Can you balance benefits against adverse impacts to make a negative declaration?
No. A negative declaration cannot balance whether the beneficial aspects of a proposed action will outweigh its adverse impacts. Rather, the determination of significance for an action must consider whether the proposal has any probable significant adverse environmental impacts.
5. What information must be contained in a negative declaration?
As discussed in 617.12(a), a negative declaration must contain:
- A statement that it is a negative 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 for the action;
- A brief and precise description of the nature, extent and location of the action; and
- A brief statement of the reasoning that supports the determination.
It is essential that negative declarations for both Type I and Unlisted actions include the description and rationale called for in the last two bulleted items above. Simply stating that the lead agency believes that the action will have no significant impact is insufficient.
6. 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.
7. Can a negative declaration be amended?
Yes. Subdivision 617.7(e) provides that a lead agency may amend its negative declaration at any time prior to undertaking, funding or approving an action, if it concludes that it must consider project modification, or a change in circumstances compared to what was previously addressed, while still concluding that the action will have no significant adverse environmental impacts. The amended negative declaration must be prepared, filed and published in the same manner as the original negative declaration.
8. Can a Negative Declaration be rescinded?
Yes. Subdivision 617.7(f) provides that, if a lead agency determines at any time prior to undertaking, funding or approving an action that a significant environmental impact may result from a project modification or from a change of circumstances which was not previously addressed, the lead agency must rescind its original negative declaration. The lead agency must inform other involved agencies and the applicant of its intent to rescind the negative declaration, and must allow the applicant a reasonable opportunity to respond before the rescission takes effect. The lead agency must issue its new determination of significance after considering the applicant's comments. The new determination of significance must be prepared, filed and published according to the rules in 617.12.
A negative declaration cannot be rescinded after the lead agency has issued its final decision on the action. However, should the final decision be revoked or overturned, a new determination of significance would be needed for any reconsideration of the action.
9. Can a project be denied after a negative declaration?
Yes, but the basis for denial must generally be based on the failure of the project to meet specific numerical or technical standards not relating to the environmental significance of the project, or for reasons other than general environmental impacts.
Example: The action proposed is the construction of a convenience store on a small lot in an area that has been zoned as residential. While there may be no significant adverse environmental impacts because the lot is in an already-developed area, the project does not meet lot line setback requirements, and is obviously not a residential use of the land. The applicant requests lot line and use variances citing the relatively small number of cars that will be parked at the store at any one time, the fact that fences are proposed to screen the store from the immediate neighbors, and the service to the community in providing a store within walking distance of many homes.
Landowners of the adjacent properties complain that the location of the store so close to the lot lines will lessen their ability to enjoy their property, and may reduce their property values. Almost all the area residents are vehemently opposed to the granting of the use variance which will intrude on the residential nature of the neighborhood. They also worry about the more "transient" traffic endangering small children, and the increasing probability for litter and noise degrading their neighborhood. Also, there are two existing convenience stores, relatively close by, in a commercially zoned area.
A negative declaration would be a logical conclusion to the SEQR review of this project based on its lack of significant adverse environmental effects, but the Zoning Board of the town would be well within its authority to deny the requests for variances based on the failure of the variance requests to meet the tests for variance issuance.
10. Is there a public comment period required on a negative declaration?
No comment period is required after a negative declaration. However, a comment period is required in the case of a conditioned negative declaration. See 617.7(d)(1)(iv).
11. May an agency issue a draft negative declaration?
The concept of preparing a draft negative declaration and circulating it for public review is not addressed in Part 617. Some agencies have used this approach as a way of obtaining public input prior to the agency's final determination of significance. The use of a draft negative declaration is not prohibited and, for certain actions, it may provide an additional mechanism for public input.
12. May a lead agency rely on the expertise of an involved or interested agency in making its negative declaration?
Yes. If an involved or interested agency with expertise on an issue has stated that there will be no significant impact from part of an action on resource factors in its area of expertise, the lead agency may reasonably rely on those statements to support its negative declaration. Example: when the Department of Health has determined that the quality and quantity of a water supply for a residential property is adequate, the lead agency may use that conclusion in support of the negative declaration.
13. May a lead agency consider project changes offered by the applicant in reaching a negative declaration?
Yes, as long as the changes are developed as part of an open review process, and those changes are incorporated by the applicant into the ultimate design submitted for approval. See Merson v. McNally (1997).
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