E. Conditioned Negative Declarations (CNDs)
In This Section You Will Learn about:
- circumstances when a CND is most appropriate;
- how public comment on a CND should be considered;
- time deadlines and filing requirements for a CND; and
- information on amending and rescinding a CND.
1. What is a Conditioned Negative Declaration?
A conditioned negative declaration (CND) is a form of negative declaration which may be used for Unlisted actions only, and only in limited circumstances. Use of a CND can be appropriate when a lead agency concludes that a proposed action may have a potentially significant adverse impact on the environment, but the impact can be eliminated or adequately mitigated by conditions imposed by the lead agency, without the need for additional environmental studies. Use of the CND acknowledges that without imposition of conditions by the lead agency, the action may have potentially significant impacts. In situations where those impacts are readily mitigated or avoided, use of the CND allows an agency to issue an approval with enforceable conditions. When a lead agency uses the CND process it must consider the whole action and all relevant impacts in identifying appropriate conditions.
2. Must a CND meet the conditions of legal sufficiency expressed in 617.6(g)(2) in the same fashion as other determinations of significance?
Yes. A CND must show, in written form, that the whole action was considered and that all relevant areas of environmental concern were identified and thoroughly analyzed. A reasoned elaboration must be given as to why any areas of concern would not constitute significant adverse environmental impacts. The lead agency must document its conclusion that any potential impacts are not significant, or that any potentially significant impacts would be adequately mitigated through either the standards within the jurisdictions of the lead and other involved agencies, or through the special conditions of the CND.
3. Are there specific procedural requirements when a lead agency uses a CND?
Yes. A lead agency must meet certain requirements to issue a CND:
- A CND may only be used for Unlisted actions that are initiated by applicants and that require agency approval or a decision to provide funding. A CND may not be used for projects where the lead agency is the applicant, nor for Type I actions;
- Issuance of a CND must be based on coordinated review (see 617.6(b)(3)), thereby providing opportunity for full consideration of the concerns of other involved agencies;
- A lead agency must use the full Environmental Assessment Form (EAF), rather than the short EAF otherwise allowed for Unlisted Actions;
- The conditions imposed must be explicitly set forth in the CND
- The lead agency must publish notice of the CND, including a summary of proposed conditions in the Environmental Notice Bulletin (ENB), a weekly publication of the NYS Department of Environmental Conservation. An agency may also use its own notice and review procedures;
- The lead agency must allow a minimum of 30 days for public comment on the CND and proposed conditions;
- The lead agency must meet all notice and filing requirements of 617.12, in the same manner as for Type I actions;
- The lead agency must consider all comments received; and
- Based on its initial assessment and all substantive comments received, the lead agency must decide whether to finalize the CND, or rescind the CND and issue a positive declaration.
4. What is an agency required to do in response to comments received during the public comment period?
The lead agency is required to review all comments received during the public comment period to determine if they raise substantive issues and are relevant to the adequacy of the CND. This review may result in a lead agency taking one of the following options:
- If the comments received are not relevant to the adequacy of the mitigation or they raise issues which are determined to be non-substantive, the lead agency is not required to take any further procedural action. The lead agency may, in order to provide for a legally sufficient record, choose to respond to the comments explaining why they were determined to be not substantive.
- If comments are received that suggest improvements to an already adequate mitigation measure or a better way to mitigate the impact, the lead agency has the discretion to make a minor adjustment to the CND. This type of minor revision to address comments that will strengthen an already adequate mitigation measure would not require that the lead agency go through the CND process again or require the preparation of a draft EIS. The lead agency may, as indicated in the first option above, choose to respond to the comment stating the revision that was made to the CND.
- If comments are received that, in the lead agency's judgment, identify potentially significant environmental impacts that were not considered in the CND or were inadequately considered or provide substantive information regarding the inadequacy of the proposed mitigation measures, but the impacts can be adequately mitigated or eliminated, the lead agency may revise the CND and renotice for another minimum 30-day public review period.
- If comments are received that, in the lead agency's judgement, would support the preparation of a draft EIS because they
- identify potentially significant environmental impacts that were not considered in the CND or were inadequately considered or
- provide substantive information regarding the inadequacy of the proposed mitigation measures which cannot be adequately mitigated or eliminated;
the lead agency must rescind the CND and proceed with the preparation of a draft EIS as provided in 617.7(b)(2). The lead agency would notify the applicant and prepare and file a positive declaration. In the positive declaration, reference should be made to the CND and indicate that it has been rescinded by the issuance of the positive declaration.
5. Can an agency be required to use a CND?
No. A lead agency has the discretion to decide whether or not to use a CND.
6. If an agency applies conditions to an approval that are within its authority to impose, must the agency use the CND process?
No. A lead agency need not rely on a CND to attach conditions which are explicitly-articulated standards (either numerical or narrative) within that lead agency's underlying jurisdiction, or conditions that an applicant is otherwise legally obligated to meet in order to obtain a permit or approval. Under these circumstances, the lead agency could issue a Negative Declaration, not a CND, if the effects of the action will not be significant when such conditions are imposed.
Typical examples of conditions that may be imposed based on the lead agency's underlying authority, and thus not require a CND, are:
- Requiring relocation of a building footprint during site plan approval;
- Requiring conformance to a municipality's standards for setback from lot lines;
- Meeting emission or discharge standards as required by law;
- Locating septic tanks above seasonal groundwater levels;
- Requiring erosion and runoff controls during construction; and
- Requiring a detention or retention basin for stormwater control.
7. When using a CND, must a lead agency only issue conditions that are within its specifically granted legal authority?
No. SEQR requires agencies to protect the environment and to incorporate consideration of environmental factors into the decision-making process. SEQR adds to the legal authority that agencies already have for decision making on an action when that action may affect the environment. The courts have recognized that SEQR has an "action forcing" aspect which may include the imposition of conditions to mitigate significant environmental impacts so long as the conditions are practicable and reasonably related to those impacts identified in the record. The conditions included within a CND cannot intrude on another agency's jurisdiction, however, a lead agency may include mitigation for impacts of concern to other involved agencies, based upon comments from those agencies.
8. What are some examples of situations where a CND was used?
- The proposed action was to construct a cell phone microwave tower. A number of citizens were concerned about the maintenance of the tower or the abandonment of the structure if technology changed. The lead agency chose to issue a CND with the condition that only one tower be built as proposed and that on or before 20 years had gone by, the tower had to be removed.
- A developer proposed to construct a shopping mall on some vacant property between two other commercial businesses on a very busy highway. A high school was located directly across from the proposed mall. The lead agency issued a CND with the requirement that the applicant build a pedestrian bridge over the highway to allow the students to cross the highway safely.
9. What other types of conditions have been attached to a CND?
Other mitigating conditions which have been included in CNDs include the addition of a turning lane, location of curb cuts, addition of landscaping to screen an unsightly intrusion, or installation of an effective noise buffer.
10. Can a lead agency expedite project approvals by requiring, as a condition of a CND, that an applicant investigate and mitigate potential significant impacts which were identified during the initial review of the EAF for the proposed action?
No. It is contrary to the SEQR process to issue a permit or other approval for a project when potential significant impacts that have been identified remain un-investigated. As in the case of negative declarations without conditions, a CND is a formal determination by a lead agency that there will be no significant environmental impacts from undertaking any part of an action. If there is a potential that there may be significant environmental impacts, this should be investigated by requiring an EIS. Mitigation through a CND should only occur when the nature and extent of an impact are known, and the means of mitigating it have been decided by the lead agency. A CND should never rely on a future investigation to develop conditions of mitigation. The mitigating conditions must be explicitly defined when the CND is issued.
11. If a CND has been issued, and information is received during the comment period that indicates there are significant adverse impacts that have not been mitigated, can the applicant then modify the project, have the lead agency rescind the CND and issue a negative declaration?
No. If information or comments are received which indicate that there may be significant adverse environmental impacts which were not mitigated by the conditions of the CND, the lead agency must rescind the CND and instead issue a positive declaration. Thereafter, the lead agency must follow all the procedures for preparation and acceptance of an EIS.
12. Is there a mechanism by which an applicant can withdraw its application, incorporate the agency's conditions, resubmit the application and receive a negative declaration?
Yes. If an application, as initially submitted, incorporates mitigation measures as part of the project design to satisfy the agency's concerns about potential adverse impacts, that application would receive a negative declaration rather than a CND. Therefore, if applicants become aware of the additional mitigation measures to be imposed by the agency, they can withdraw the application prior to issuance of a CND, incorporate the appropriate mitigation measures into the project design, resubmit the application and receive a negative declaration rather than a CND, because the action, as resubmitted, will not result in any significant adverse environmental impacts.
13. Can an applicant avoid receiving a CND for their proposed action?
Yes. An applicant may avoid the use of a CND by an agency in three ways:
- By initially proposing an action that, in the judgement of the lead agency, will not have any significant adverse environmental impacts;
- By withdrawing and resubmitting an application incorporating mitigation into the project design as in question 9 above; or
- By agreeing to prepare an EIS for the action.
14. Can an agency use the CND process for direct actions it will undertake itself?
No. The CND option is restricted to Unlisted actions proposed by an applicant which require agency approval or funding. In some circumstances, one agency may be an applicant and another agency, acting as lead agency, may choose to use the CND procedure.
15. Why can't CNDs be used for Type I actions?
The SEQR regulations distinguish between Type I and Unlisted actions to highlight those actions more likely to require preparation of an EIS. Projects categorized as Type I are typically larger and more complex actions, or actions involving sensitive areas that carry with them a greater presumption of significance. The ability of a CND to incorporate controls which readily mitigate impacts assumes smaller and less complex actions and impacts. Therefore, it is appropriate to limit CNDs to Unlisted actions.
16. When is the CND filed with the Commissioner of DEC?
The CND must be filed with the Commissioner of DEC prior to the beginning of the minimum 30 day public comment period. Submitting the CND to the Environmental Notice Bulletin for public comment satisfies this filing requirement. Typically, the CND would be filed as soon as the lead agency has developed or identified adequate special conditions.
17. When does the public comment period on the CND begin?
The public comment period on the CND begins on the date that the notice appears in the ENB. The lead agency may also use its own public notice procedures, although the ENB remains the official notification. If the lead agency uses its own public notice procedures, it must also allow at least 30 days for that notice.
18. Does an agency have to file a second copy of the CND at the conclusion of the public comment period?
If the public comment period does not raise issues that would support a positive declaration, the CND becomes effective as originally noticed, and a second notice does not have to be filed. However, if the CND is revised or amended in response to public comments, it must be renoticed for an additional 30 day public review period, in accordance with 617.12. If the CND must be rescinded and replaced by a positive declaration, the positive declaration must then be noticed and filed in accordance with 617.12.
19. What does the term "adequately mitigated" mean for a CND?
To be adequately mitigated, an impact must be reduced so that it is not significant. Depending on the impact, adequate mitigation may mean either elimination or reduction of the impact.
20. How do agencies enforce the conditions contained in a CND?
The CND, including all of the conditions with which the lead agency proposes to mitigate potential adverse environmental impacts becomes a part of the environmental review record for that project. These conditions also need to be incorporated into the lead agency's decision document within its underlying jurisdiction. As part of that decision, the mitigating conditions would then be subject to the same enforcement measures that the lead agency possesses for the underlying jurisdiction. The specific enforcement action would depend upon the remedies available in the underlying jurisdiction, but could include measures such as:
- Rescission of the permit or approval;
- Imposition of a fine;
- Compelling sponsor to remediate actions inconsistent with conditions; or
- Withdrawal of funding.
21. Can a lead agency use a CND when evaluating proposed zoning changes?
The answer depends on whether the zoning change is initiated by the municipality or a project sponsor.
If the municipality initiates the rezoning proposal, a CND may not be used because such a rezoning is a direct action. This conclusion applies whether the proposed rezoning is initiated by the municipality as part of a general rezoning, or is proposed to align the zoning of an area with its actual prevailing uses.
On the other hand, if the rezoning request is initiated by a project sponsor, a CND may be used as long as neither the proposed zoning change nor any associated project proposal exceed any Type 1 thresholds. If the change in zoning is requested by a project sponsor as part of a project proposal, the rezoning request and the proposed project should be considered as one action for purposes of the environmental review.
22. Do CNDs eliminate the need for EISs for Unlisted actions?
No. EISs will still be needed for those Unlisted actions for which:
- Significant adverse environmental impacts may occur, or an identified significant impact may not be adequately mitigated by the simple imposition of a condition;
- Alternatives to avoid the potential adverse environmental impact(s) must be explored;
- Issues raised during the public comment period support a positive declaration;
- The applicant wishes to prepare an EIS to avoid actual or perceived legal vulnerability or delay; or
- The proposed action is a direct action undertaken by an agency, and may result in significant adverse environmental impacts.
23. Is an involved agency bound by the lead agency's CND?
Yes, because CND procedures require coordination between agencies, including establishment of a lead agency to manage the environmental review of the project. As with all other coordinated reviews under SEQR, the lead agency's determination of significance is binding upon the other involved agencies. Each involved agency may still require additional conditions, consistent with its jurisdiction, when issuing its permit or approval. Additional conditions from an involved agency must be based on that agency's underlying jurisdiction and not be based solely on the lead agency's CND.
24. What can an involved agency do if it feels that a CND is not appropriate?
Depending on the stage of the review, an involved agency has several opportunities to avoid potential issuance of a CND. If a lead agency has not yet been established, the involved agency could still seek to become lead agency. If the CND has already been prepared and filed by the lead agency, the involved agency should provide, in writing, its concerns regarding the adequacy of the CND during the established public comment period. The lead agency would then have to address these concerns and either revise the CND or issue a positive declaration and call for the preparation of an EIS.
25. Can the lead agency include, as a condition in support of a CND, the requirement that the approval of another agency be obtained?
No. Conditions imposed through the CND process must be specifically designed to eliminate or minimize potential adverse environmental impacts that were identified by the lead agency based upon the full EAF and application materials. Requiring that the applicant obtain the approval of another agency, when that approval is already legally required, is not a mitigation measure. Further, a CND cannot be used to create an approval authority for an agency which has no established jurisdiction over the proposed action. Finally, the SEQR process cannot remove any underlying jurisdiction of any involved agency.
26. Does the CND process evade public review?
Compared to a conventional Negative Declaration, a CND actually provides more opportunity for public review and input because:
- A Notice of the CND must be published in the ENB and filed under the same procedures as a Type I action;
- A 30-day minimum public comment period must be provided by the lead agency; and
- The procedures mandated for CNDs require a full environmental assessment form.
27. How can a CND be challenged?
A CND is subject to challenge in the same manner as any negative declaration. The challenge would be directed at the underlying decision based on an alleged error in the CND. Some agencies may provide for an administrative appeal process, however, for most situations the challenge to a CND would require court action.
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