A. SEQR and the National Environmental Policy Act (NEPA)
In This Section You Will Learn about:
- SEQR and the National Policy Act (NEPA)
1. What is the National Environmental Policy Act?
The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., is the federal mechanism for conducting an environmental review of federally funded, approved or directly undertaken actions. NEPA applies only to the decisions of federal agencies. NEPA also established the Council on Environmental Quality (CEQ) to promulgate and interpret the NEPA regulations.
Actual NEPA language and guidance can be found at http://ceq.hss.doe.gov/nepa/nepanet.htm.
2. How do the NEPA and SEQR processes compare?
Both NEPA and SEQR require an agency to determine whether a decision is subject to environmental review and, if so, whether an environmental impact statement should be prepared. Under NEPA, classes of actions which are by regulation exempt from environmental review, and so are equivalent to SEQR's Type II actions, are called "categorical exclusions" (Cat Ex). The tool used under NEPA to assess potential impacts is an "Environmental Assessment" (EA), which is subject to public notice and comment. If a federal agency concludes that an EIS is not required, it will issue a "Finding of No Significant Impact" (FONSI). If an EIS is required, scoping, a Draft EIS, public comment, and a Final EIS responding to comments, proceed similarly to the SEQR process.
The formal threshold for requiring an EIS under NEPA is, '.....will cause an adverse environmental impact', while the threshold under SEQR is, '.....may cause an adverse environmental impact'. Furthermore, under SEQR, the requirement to require avoidance or mitigation of identified impacts via the Findings after a Final EIS is included within the statute.
3. Can decisions by New York State and local agencies be subject to NEPA review?
Decisions by state and local agencies administering federal "pass through" programs (eg. Clean Water Revolving Fund, state and local highway assistance, or Community Development Block Grants) are subject to NEPA.
4. What responsibilities do state and local agencies have under SEQR when a project is subject to NEPA review?
In situations where federal as well as state or local governments are involved in a project, and the federal agency is reviewing the project under NEPA, the state and local agencies must still satisfy SEQR. State and local agencies may use documents produced during a NEPA review as support for their required determinations or findings under SEQR. See 617.15 (link leaves DEC website.) A decision by a federal agency that a project or program is categorically excluded from NEPA review does not eliminate the responsibility of state and local agencies to appropriately classify and, if necessary, review the project or program under SEQR.
5. If an action has been the subject of a Draft and Final EIS under NEPA, are state and local agencies obligated to prepare a separate EIS under SEQR?
No. As discussed in 617.15, if an action has been the subject of a draft and final EIS under NEPA, state and local agencies have no obligation to prepare a separate EIS under SEQR, as long as the federal Final EIS provides sufficient information for those state and local agencies to make SEQR findings. When one or more state or local agencies are using a federal Final EIS as the basis for SEQR findings, each involved agency must issue its own SEQR Findings based on the federal Final EIS before issuing its own decision on funding, approving or undertaking the action.
6. Does a Finding of No Significant Impact (FONSI) under NEPA automatically constitute compliance with SEQR?
No. A FONSI under NEPA does not automatically constitute compliance with SEQR. However, because a FONSI presents the basis for a federal agency's conclusion that an action will not have a significant impact on the human environment, the FONSI may be able to serve as the basis for a SEQR negative declaration. The FONSI may include a summary of the Environmental Assessment (EA) prepared for the project, or the entire EA may be attached to the FONSI.
7. Does a NEPA FONSI or EIS, prepared by a federal agency, limit or over-ride state and local authority under SEQR for the same project?
In general, no. While a NYS or local agency may use a federal FONSI or Final EIS to help it reach its required conclusions under SEQR, these final decisions by a federal agency do not limit local or state agency authority under SEQR (with some limited statutory exceptions, below). The SEQR regulations at 617.15 address how federal agency decisions under NEPA affect an agency's obligations under SEQR.
Certain federal statutes explicitly pre-empt or supercede state authorities, including SEQR. Examples are the Natural Gas Policy Act, federal regulation of hydropower facilities, many railroad-related activities, and national interest electric transmission corridors.
8. Are federal agencies subject to SEQR?
No. Federal agencies themselves are not subject to SEQR. However, state and local agencies who are operating with federal "pass through" type programs (i.e. certain water programs and local road programs) are not exempt from SEQR because of their federal connection.
9. Can a Federal agency be an involved agency under SEQR?
No. However, when an action is going to be the subject of a federal agency review and approval under NEPA, it is advisable to treat the federal agency as if they are an interested agency for the purposes of the SEQR process in order to retain consistency in overall review decisions. This means, for example, that copies of all notices and EISs should be shared with the federal agency and, if formal scoping is conducted, the comments of the federal agency should be requested and incorporated into the scope.
10. Is it possible to coordinate SEQR and NEPA reviews?
Yes. State and federal environmental review of an action may be coordinated. This is desirable to reduce duplication and potential conflict between the two levels of government. Specifically, a coordinated SEQR/NEPA review process may include joint procedures to satisfy both state and federal requirements, such as:
- environmental assessments;
- scoping and the preparation of EISs;
- conduct of public hearings; and
- preparation and publication of public notices.
In the case where a SEQR EIS is being prepared with the intent to satisfy NEPA requirements, it is important under NEPA that formal scoping occur before decisions are made on the content of the EIS. Federal, state and local agencies, as well as interested parties should be invited to a scoping meeting to identify important issues that need to be discussed in the EIS.
Note, however, that if state/local agencies and federal agency(s) wish to coordinate their SEQR and NEPA reviews, they should begin those joint efforts in the early stages of a project. The Federal NEPA compliance checklist [www.fws.gov/forms/3-2185.pdf] can be valuable in such coordinated efforts.
11. Are there any pitfalls to avoid if using a SEQR EAF and EIS to satisfy NEPA review requirements?
There are several procedural differences that must be accommodated when using a SEQR EAF and EIS to satisfy NEPA review requirements:
- Under NEPA, environmental assessments must discuss alternatives to the proposal under consideration. The SEQR model EAF should be modified to incorporate corresponding federal assessment requirements.
- Under NEPA, the discussion of adverse environmental impacts must include an analysis of relevant information that is either incomplete or unavailable at the time.
- A NEPA EIS cannot be prepared by a private project sponsor. This is a task obligated to the federal agency, although it is often done with outside assistance.
- A consultant hired by an agency for NEPA EIS preparation must not be involved in any other component of the project being reviewed.
- Qualifications of the preparers of any portion of the draft NEPA EIS must be given.
- The time frames for the comment period on the draft NEPA EIS must be extended from thirty to forty-five days.
- The minimum time interval between adoption of the NEPA Final EIS and final decisions by involved agencies, must be extended from ten to thirty days to allow sufficient time for public participation.
12. Can a NEPA EIS be used, without modification or change, as a SEQR EIS?
In theory, yes, but rarely in practice. A NEPA EIS often requires supplemental information before it can be used to satisfy SEQR. The following topics are required under SEQR but not under NEPA, and so must often be added to a NEPA EIS before the document will meet the minimum requirements for an EIS under SEQR:
- a description of any growth inducing aspects of the proposed action, if applicable and significant;
- a discussion of the effects of the proposed action on the use and conservation of energy, if applicable and significant;
- a discussion of the effects of the proposed action on state and local waterfront programs, for state agency actions in the coastal area; and
- a discussion of the effects of the proposed action on solid waste management, if applicable and significant.
A NYS or local agency may request that these topics be included in the NEPA EIS, or a SEQR lead agency may be established to prepare a supplemental EIS under SEQR to address these additional topics. See handbook section Supplemental EIS's.
13. Can a federal environmental assessment (EA) be accepted as a draft EIS under SEQR?
In some cases, yes. Many federal EAs can be accepted as a draft EIS under SEQR because they provide as thorough a review as a draft EIS under SEQR. When this occurs, a SEQR lead agency has the option of using the EA as a draft EIS for the purposes of SEQR, so long as the minimum procedural and substantive requirements of SEQR have been met. In those cases where a federal EA covers most, but not all, of the SEQR issues, additional information on specific issues may be added to the federal documentation. See question 12 above.
14. Can a separate SEQR review be started before the NEPA review begins?
Yes. At the option of the project sponsor, a state or local agency may commence the SEQR review of an action before the NEPA process commences. In the case of an agency direct action, the responsible state or local agency always has the option to proceed with the SEQR review before the NEPA process begins.
When a state or local agency proceeds with SEQR prior to the start of the NEPA process, however, there is a risk that agency time and public money will be spent on a project review whose outcome depends on federal government approval.
15. Can a state or local agency issue an approval following the completion of the SEQR review, but before the NEPA review has ended?
Yes. The SEQR review process can be concluded prior to the NEPA review ending. However, in such circumstances, state and local approvals and decisions which are made under SEQR must be considered contingent on the federal decision on the action.
16. Is there a threshold level of federal involvement in a project which triggers NEPA review?
Federal courts have issued a number of opinions on what level of federal agency authority or involvement is sufficient to "federalize" a project and so trigger NEPA. In general, where a federal approval applies to only an inconsequential component of a project, NEPA does not apply. Accordingly, NYS or local agencies cannot always presume that an action has been federalized just because there is some federal approval required. In all cases, the NYS or local agency is responsible for satisfying SEQR.
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