C. Contents of a Draft EIS
In This Section You Will Learn about: the content and acceptance of a draft EIS.
(All links to regulations leave DEC website.)
1. What is the purpose of a draft EIS?
The draft EIS is the primary source of environmental information to help involved agencies consider environmental concerns in making decisions about a proposed action. The draft also provides a basis for public review of, and comment on, an action's potential environmental effects. The draft EIS accomplishes those goals by examining the nature and extent of identified potential environmental impacts of an action, as well as steps that could be taken to avoid or minimize adverse impacts.
A close relationship should exist between project planning and the draft EIS for projects that have been planned with environmental goals as integral considerations. This concept of "good planning" was one of the objectives contemplated by the legislature when it passed SEQR. A well-scoped draft EIS is evidence of this planning.
2. What information should a draft EIS contain?
The requirements for the general content of a draft EIS are provided in statewide SEQR regulations at 617.9(b). The EIS should focus on the potential adverse environmental impacts of the proposed action, plus alternatives or mitigation which could avoid or minimize the identified adverse impacts. The EIS therefore needs to contain sufficient descriptions of the proposed action and its setting to provide appropriate context for a reader to understand the analyses of impacts, alternatives, and mitigation, but should not be an "encyclopedic" or overly technical document.
3. Are there specific requirements for the cover sheet of an EIS?
Yes. The standards are found in 617.9(b)(3). See also section 5D of this handbook for information on how to establish the dates which the cover sheet must contain.
4. Must every draft EIS follow the format as described in 617.9(b)?
No. The content of the document is much more important than the format. As long as all of the elements identified in 617.9(b) are contained somewhere in the EIS, it is acceptable to deviate from the sequence identified in the regulations. Many preparers find that placing all of the impact and mitigation analyses in one section improves the EIS continuity, and makes the document easier to understand. Remember, impacts include irreversible or irretrievable effects of the action, growth inducement, effects on the use and conservation of energy, impacts on solid waste and coastal zone consistency, along with impacts on individual resources.
An example of this format would be:
- Cover Sheet
- Table of Contents
- Description of the proposed action
- Environmental setting
5. How extensive should the draft EIS Summary be?
The Summary may be a narrative statement, or a substantial outline. It should contain a brief description of the overall proposed action, and list the following:
- significant beneficial and adverse impacts;
- mitigation measures proposed;
- alternatives considered;
- issues of controversy (if any); and
- matters to be decided, including a listing of each permit or approval required from every involved agency
6. What should be included in the description of the proposed action in the main body of the EIS?
The description of the proposed action should contain:
- The purpose or objective of the action, including any public need for, or public benefits from the action, including social and economic considerations;
- The location and physical dimensions of the action;
- The background and history of the action, or site, where related to item i. above;
- Timing and schedule for implementing the action, including construction and operations phases, to the extent the information is available, or can reasonably be estimated;
- Relationship of the action to land use plans, zoning restrictions, and other adopted plans and programs at the local, regional or state level; and
- Identification of authorizations, permits and approvals required.
7. What are the distinctions among purpose, needs and benefits of an action?
Purpose is a goal or objective to be achieved. The purpose of most private project sponsors is to make a profit from some development activity on their property. The purpose of many public actions is to meet a perceived public need and may include assisting in economic development. Other public actions relating to laws and regulations may be for the purpose of protecting public health or safety, or enhancing general welfare.
Need is a lack of something required, desirable or useful. The need for an action may be public, private, or a combination of both. Public need may apply to publicly or privately sponsored projects that satisfy a societal need, such as health care facilities, housing for the elderly, or new industry in an area of high unemployment.
Benefit is something that promotes well-being. The benefits of an action relate to satisfaction of need. An action may not always satisfy all identified needs. For example, a new shopping plaza near residential development may provide the benefit of a convenience food store, but still not provide a needed supermarket. Benefits may also exceed perceived needs and satisfy additional ones. For example, the extension of a public water supply to a new affordable housing development may also benefit nearby residents who may be able to connect to that new supply.
8. Why are social and economic considerations required in an EIS?
In reaching a decision whether to approve, approve with conditions, or deny, applications for an action which is the subject of an EIS, each involved agency is required to weigh and balance the public need and other social, economic and environmental benefits of the project against identified environmental harm. Thus, for an agency to approve an action with potential to create significant environmental damage, or to adversely affect important environmental resources, the agency must be able to conclude that the action which the agency will approve, including any conditions attached to that approval, avoids or minimizes anticipated impacts to the maximum extent practicable, or that public needs and benefits outweigh the identified environmental harm. Where public needs and benefits cannot be shown to outweigh the environmental risks of a project, the agency may be compelled to deny approvals for the action.
Each involved agency must conduct this balancing process for itself, in the context of its underlying jurisdiction. This balancing process must be documented in the written SEQR findings that each involved agency is required to make for a project that has been the subject of an EIS (see Chapter 5-I Findings, Question 14, Why is consideration of social and economic factors included within SEQR findings?).
9. Are there economic or social factors which are inappropriate for inclusion in an EIS?
Purely economic arguments have been disallowed by the courts as a basis for agency conclusions when concluding a SEQR review by developing Findings. Therefore, potential effects that a proposed project may have in drawing customers and profits away from established enterprises, possible reduction of property values in a community, or potential economic disadvantage caused by competition or speculative economic loss, are not environmental factors. See East Coast Development Company v. Kay and Wal-Mart Stores v. Planning Board of the Town of North Elba.
Some social factors may be considered arbitrary, discriminatory, or speculative, and consequently are inappropriate for inclusion in an EIS. Such factors may include, but are not limited to, potential for crime, drug problems or psychological stress. These kinds of social concerns may be raised by the public during the comment period or hearing on an EIS. In such cases, they may be acknowledged, but given limited weight, when SEQR findings are developed during the agency's final decision-making.
10. Is "need" weighed differently for privately-sponsored actions than for government sponsored actions?
Yes. Government sponsored actions are typically designed to address a public need, consistent with the concept of government accountability. Private actions, in a free market economy, may legitimately be intended only for the purpose of making a profit. This difference between public and private actions is reflected in the level and nature of discussion about need in an EIS.
For example, if a municipality proposes to build a new road to provide better commuting access to a downtown office district, the municipality must demonstrate that the public need exists and that the project adequately responds to that need. For privately sponsored actions, however, the required discussion of need depends on the project's potential for adverse environmental impacts. If the EIS shows that the project's adverse impacts can all be adequately mitigated, then a limited discussion of the applicant's need would be sufficient.
There can be cases in which proposed privately sponsored projects would result in unavoidable or unmitigatable adverse environmental impacts. Agencies must then balance those adverse environmental impacts against social, economic and other essential considerations in order to make their SEQR findings. In such cases, the EIS must document any public need or benefits that may be associated with the project, so that agencies making Findings may base their conclusions on information contained in the SEQR record.
11. How can public need be documented?
The EIS should show how the proposed action is capable of serving a public use, benefit, or purpose. For example, certain privately sponsored actions, such as a housing project for the elderly, or a new industry in an area with high unemployment, are capable of meeting definable public needs. Other potential components of public need which are frequently cited include increased tax revenues through additions to the local taxable base, or a fulfillment of shopping, recreation or other service demands. Public surveys can be useful tools for identifying whether a need presently exists for a particular project, or to gauge public acceptance of induced need.
The discussion of public need should be given a greater level of detail when there are potential adverse impacts that cannot be reduced or eliminated. This is essential because it is usually the public who will bear the burden of environmental impacts caused by the action.
12. If a proposed action is compatible with local zoning, is this evidence of public need?
While local zoning is generally considered to reflect a community's goals, compatibility with zoning should not be confused with public need. Sponsors of many privately proposed actions may be able to demonstrate their compatibility with such indicators of public development intent as locally adopted land-use plans, zoning ordinances, historic districts and agricultural districts. To demonstrate public need, however, the sponsor must also show what element of need a proposed project will satisfy. For example, the sponsor of a proposed residential subdivision could demonstrate public need for additional housing if a community with high housing occupancy has recently gained a major new employer.
13. Must the final plans for a proposed action be created for, and included within, an EIS?
No. One of the basic purposes of SEQR is to incorporate the consideration of environmental factors at an early stage of project development. This often means that the EIS will be prepared before final plans are available. Many applicants will be unwilling to prepare final site plans, subdivision plats and stormwater management plans during EIS preparation due to the costs of those designs, and the possibility that changes will be required as a result of the EIS review. While final plans are not necessary, the EIS should contain enough detail on size, location and elements of the proposal to allow a reader to understand the proposed action, the associated impacts, and to determine the effectiveness of any proposed alternatives or mitigation.
As a general rule, the amount of detail regarding a specific impact in an EIS should depend on the magnitude and importance of the impact. For example, if onsite stormwater management is an impact of concern, the EIS should determine the quantity of runoff using accepted methods for calculating runoff, identify the structural and nonstructural measures to be used for stormwater management, and identify the approximate location and size of those structures.
14. Must an EIS contain a detailed discussion of site history?
The discussion need not be lengthy. However, a summary of the background or history of a site with respect to previous activities there, or past proposals for its use, may have a bearing on what is presently proposed. Similarly, the background of a legislative or regulatory proposal may provide substantive arguments favoring its adoption. Thus, the nature and location of the proposed action will determine whether detailed historical elaboration is necessary. In particular, omission of facts about earlier environmental problems or issues at a site could be a fatal defect with respect to the adequacy of an EIS.
15. What information is necessary in an EIS regarding the timing and scheduling of a proposed action?
For proposed physical development activities, the description should recognize four major project stages: (1) planning and design, (2) construction, (3) operation and maintenance, and, where appropriate, (4) termination. Schedules for individual phases of overall projects, and for separate development of individual elements, should be covered to the extent information is available. Each project stage or phase may have different types of potential impacts. In some instances, knowledge of the timing of certain construction activities could be instrumental in mitigating potential impacts. For example, impacts on fish spawning in a particular stream might be totally avoided by scheduling construction at a different time of year.
With proposed actions which do not involve direct physical development (e.g., the adoption of a zoning ordinance, the establishment of an historic district, or the granting of a permit for a temporary use or activity), the discussion of timing should address such elements as the effective date of the proposed ordinance or the duration of the approved activity.
16. In an EIS, how should one treat uncertainties associated with the timing of subsequent phases of a proposed action?
Precise dates are not necessary, but general duration and sequencing of phases should be indicated.
17. How should an EIS relate state and local plans and programs to a proposed action?
The relevance of existing state or local plans or programs will depend on the proposed action. If the action involves the adoption of ordinances, laws, rules or regulations, it is appropriate to show how these relate to existing programs or plans at state, regional, county, or municipal levels. If the action involves a physical development, its relationship to local and regional comprehensive plans for issues such as land use, water supply, sewage collection and treatment, and solid waste disposal are likely to be important considerations with respect to the environmental impacts of the action.
18. Why must a discussion of all likely approvals for an action be included in an EIS?
The primary purpose of such a discussion in an EIS is to establish the roles of the various involved agencies in the action. The EIS should show the extent of the various authorizations, permits and approvals required, so that all involved and interested parties will be aware of the potential means by which identified impacts may be avoided or mitigated. While this information would have been included in the EAF, not all reviewers of the draft EIS will have seen the EAF.
19. How should the environmental setting of an action be described in an EIS?
The environmental setting of an action includes the existing environment, any existing uses of the project site, and a general characterization of adjoining areas. If the proposed action is a non-physical action, such as adoption of an ordinance or regulation, a description of the present circumstances in the area affected by the action must be included.
Within the EIS, the description of the environmental setting may be qualitative but should be supported by quantitative information whenever relevant and reasonably available (for example, the number of existing residential units adjacent to a project site). The components of the environmental setting that relate to potential relevant impacts should receive most attention in the description.
Where the action involves the expansion of an existing facility, the existing facility should be included and described as part of the environmental setting. Only the expansion should be considered and analyzed as the proposed action under SEQR.
20. How should potentially significant environmental impacts be discussed in a draft EIS?
This section of the draft EIS should focus on the potential environmental impacts and issues which were identified in the EIS scoping process. The description and analysis of potential impacts should use the discussion of the environmental setting as a basis for comparison. The discussion of potential impacts must be as objective as possible. Specifically, the discussion of impacts may include quantitative or qualitative information as long as it is sufficient to determine:
- how likely it is that an impact will occur;
- how large the impact will be;
- how important the impact will be; and
- the time frame during which the impact is likely to occur.
21. If a potential impact is beneficial rather than adverse, must it be covered in the EIS?
While the main purpose of identifying and mitigating impacts is to limit or control adverse impacts, it is relevant to also identify likely beneficial effects of the proposed action. These considerations will be used by decision makers in balancing positive and negative effects in the findings statement.
22. Why must alternatives be considered when the project sponsor has already decided what is the best project?
An EIS has been required because potentially significant adverse impacts of the sponsor's proposed project have been identified. An analysis of alternative project configurations or designs will enable the lead agency to determine if there are reasonable, feasible alternatives which would allow some or all of the adverse impacts to be avoided while generally satisfying the sponsor's goals. A project sponsor generally develops its project proposal based solely on its own goals and objectives. These goals and objectives may not include maximum protection of environmental factors, and are not always shared by the reviewing agencies or the public. Requiring that reasonable alternatives be discussed allows a reviewer to independently determine if the proposed action is, in fact, the best alternative for that project when all environmental factors have been considered.
23. How should the lead agency determine which alternatives should be discussed in the EIS?
The goal of the alternatives discussion in an EIS is to investigate means to avoid or reduce one or more identified potentially adverse environmental impacts. Part 617 further requires that the alternatives discussion include a range of reasonable alternatives which are feasible considering the objectives and capabilities of the project sponsor. In general, the need to discuss alternatives will depend on the significance of the environmental impacts associated with the proposed action. The greater the impacts, the greater the need to discuss alternatives. The discussion of each alternative should specifically include an assessment of its likely effectiveness in reducing or avoiding specific impacts.
For projects such as the construction of a residential subdivision or an office building, it is not necessary for every possible alternative density or size to be discussed. A range such as the density or size permitted under the existing zoning, the density or size after taking into consideration environmental constraints (wetlands, steep slopes, etc.), and the density or size if clustering were to be used, may be reasonable alternatives.
24. Are there specific kinds of alternatives that should be considered?
This will depend on the nature of the proposed action. Paragraph 617.9(b)(5)(v) of the statewide SEQR regulations suggests that, in addition to the "no action" alternative, it may be appropriate in a draft EIS to consider alternative:
- scale or magnitude of action;
- project designs;
- timing or phasing of action;
- uses; and
- types of actions.
25. When is an alternative "reasonable"?
What constitutes a "reasonable" alternative will depend on the nature of the proposed action, the nature and range of potential adverse impacts, the sponsor of the action, and the general nature or class of the possible alternative. For example, government sponsors have a greater obligation to consider alternative locations than do private sponsors; and not all technological alternatives will be relevant to all classes of proposed actions.
26. Under what circumstances should a discussion of alternative sites be included in the EIS?
Paragraph 617.9(b)(5)(v) ('g') specifically states that for private applicants, alternatives may be limited to sites which the sponsors own or have under a purchase option. For direct government actions, however, there is no parallel limitation, because governments are presumed to have ability under eminent domain to acquire any appropriate site.
Examples of situations where a discussion of alternative sites for a proposed action would be reasonable include:
- A project which is a direct action of an agency;
- A project sponsor who has already evaluated alternative sites in developing the proposal for a private action, and desires to include that analysis in the draft EIS; or
- Any case where the suitability of the site for the type of action proposed is a critical issue, in which case a conceptual discussion of siting should be required.
27. When is it appropriate to include a discussion of alternative technologies in the EIS?
A discussion of alternative technologies is appropriate when:
- The alternative technology has the ability to avoid or significantly reduce potential environmental impacts;
- The cost of the alternative technology is not prohibitive, where prohibitive does not mean merely less profitable; or
- The alternative technology has been proven effective in comparable situations.
28. When is it appropriate to include a discussion of alternative scales or magnitudes of action in an EIS?
Consideration of alternative scales or magnitudes may be reasonable under the following circumstances:
- Some or all potential impacts of the action can be avoided or reduced by a change in project size;
- The change in project size does not reduce the project to the point where it will no longer serve its intended function. For example, a communication tower may require a minimum height for effective operation; or
- The reduction in project size may decrease potential profit but does not make the project infeasible.
29. When is it appropriate to include a discussion of alternative project designs in an EIS?
Consideration of alternative project designs may be reasonable under the following circumstances:
- Some or all potential impacts of the action can be avoided or reduced by a change in project design, such as a change in traffic ingress/egress to direct traffic away from a quiet residential street to a county road, or a change in the facade of a structure to make it more compatible with its surroundings; or
- The alternative design may increase the overall project costs but the increase is not prohibitive.
30. When is it appropriate to include a discussion of alternative timing or phasing in an EIS?
Consideration of timing or phasing alternatives may be reasonable in the following circumstances:
- The timing or phasing are necessary to avoid impacts to seasonal or temporary aspects of environmental resources, such as spawning or nesting seasons for certain fish and wildlife; or
- The timing or phasing alternative would not delay the start or extend the overall schedule of a proposed action to the point that project feasibility would be threatened.
31. When is it appropriate to include a discussion of alternative uses or types of actions in an EIS?
Consideration of an entirely different use or action may be reasonable in the following circumstances:
- The proposed action does not conform to the current zoning of the site, in which case comparison to the use allowed under the existing zoning may be informative;
- The alternative action being considered may produce significantly fewer impacts while not significantly compromising the overall objective of the proposed action. For example, adding an anchor store to a mix of businesses in a shopping mall may have fewer noise and traffic impacts than would a theater or nightclub; or
- The project sponsor has a diverse range of development experience and has demonstrated capability to manage a number of different types of development.
32. What is the "no action" alternative?
The "no action" alternative must always be discussed to provide a baseline for evaluation of impacts and comparisons of other impacts. The substance of the "no action" discussion should be a description of the likely circumstances at the project site if the project does not proceed. For many private actions, the no action alternative may be simply and adequately addressed by identifying the direct financial effects of not undertaking the action, or by describing the likely future conditions of the property if developed to the maximum allowed under the existing zoning.
The discussion of the "no action" alternative can be particularly relevant for agency direct actions where the expenditure of public funds must be justified. In addition to impacts that are purely environmental in nature, government actions can affect setting, community character, and even local demographic or economic trends.
33. Is there a way to limit the amount of detail in the EIS while still allowing an adequate comparative assessment of alternatives?
Yes. For most actions, it is sufficient to use existing information to create reasonably comparable assessments of alternatives. This information may consist of references to existing documents or other studies; projections based on explicitly stated, reasonable assumptions; or evidence that clearly excludes an alternative from consideration.
On the other hand, for projects with many significant impacts, or projects likely to significantly affect public health and safety, it may be reasonable to develop a full discussion of each alternative. This is especially true when comparing alternative technologies, for which fully detailed modeling is often the minimum level of information necessary for a comparative assessment.
In general, a reasonable test of the adequacy of the discussion of an alternative, is to ask if the information provided is sufficient for a decision-maker to identify the alternative that minimizes or avoids adverse environmental impacts to the maximum extent practicable.
34. If one or more alternatives which require no agency discretionary decisions or approvals are available, must these be included among the alternatives in a draft EIS?
Actions requiring no discretionary decisions by any agency are not subject to SEQR. However, such "as-of-right" alternatives may be analyzed in a draft EIS to provide additional bases for comparison with other alternatives. There can be cases where "as-of-right" alternatives are more likely to cause significant adverse environmental impacts than would the action requiring agency approvals.
35. If an adverse environmental impact cannot be avoided or fully mitigated, how must the EIS discuss that impact?
Certain adverse environmental impacts can be expected to occur regardless of the mitigation measures employed; for example, there is typically permanent loss of vegetation when building a new facility and any related parking. Because such unavoidable impacts must be factored into final agency decision making, the SEQR regulations provide that an EIS must contain an identification and assessment of impacts that cannot be avoided or adequately mitigated. The discussion of unavoidable impacts must meet the same substantive requirements as all other discussions of impacts and alternatives.
36. How should the EIS address irreversible and irretrievable commitments of resources?
The extent to which a proposed action may cause permanent loss of one or more environmental resources should be identified as specifically as possible based upon available information. Resources which should be considered include natural and man-made resources that would be consumed, converted or made unavailable for further uses due to construction, operation, or use of the proposed project, whether those losses would occur in the immediate future, or over the long term. Examples include the filling of wetlands; paving over or construction on valuable agricultural soils; use of non-renewable, or non-recyclable materials in new structures; and use of fossil fuels in construction or operation of the project.
37. What is "mitigation"?
To mitigate means to make something less severe, or to alleviate a harsh or hostile condition. For SEQR purposes, mitigation may be defined even more broadly; in addition to considering measures which could reduce or minimize adverse environmental impacts, measures which could produce beneficial impacts may also be considered.
38. How should mitigation relate to impacts identified in the EIS?
A discussion of feasible mitigation measures which could address specific identified impacts is a fundamental component of every EIS. The mitigation discussion can allow a project sponsor to offer constructive ways to reduce one or more identified environmental impacts associated with the proposed action. Mitigation may include measures offered voluntarily by the project sponsor. It is important that any mitigation offers should be practical preventative, remedial, or compensatory procedures that the sponsor can actually accomplish.
Mitigation measures may also be required by any involved agency with appropriate jurisdiction as conditions which are incorporated as part of its final decision on the action. When mitigation measures are made part of the enforceable standards within an agency's final approval, that agency creates a means to ensure that environmental impacts will be reduced to the maximum extent practicable, as SEQR requires. This aids the decision making agencies in balancing positive and negative aspects of a proposed action.
39. What are some common mitigation measures?
Some common mitigation measures include:
- Modifying project footprint, such as clustering of structures, to reduce the area impacted and preserve open space;
- Screening and landscaping, such as earthen berms, hedgerows, or plantings to protect existing sensitive views or vistas;
- Use of alternative landscaping in place of lawns to improve recharge to aquifers and reduce fertilizer needs;
- Reclamation and restoration, such as pond dredging, reseeding of excavated or graded sites, and use of project wastes for land reclamation;
- Careful timing, such as dredging during winter months to minimize plankton blooms, conducting stream disturbances to avoid fish spawning seasons, and scheduling daily construction/operation hours to minimize noise impacts on local receptors;
- Monitoring actual levels of predicted impacts, for example, air emissions, quality of water discharges, or noise generation, during construction and during a defined initial period of operation, to ensure effectiveness of control measures;
- Requiring construction-phase precautions, such as erosion and sedimentation control (siltation ponds, silt fencing, or mulching), dust control and minimization of land clearing for construction; or
- Adding turning lanes, modifying traffic flows or providing access to public transit to reduce predicted traffic impacts.
40. Must mitigation of non-significant impacts be addressed?
Sometimes. Where potentially significant cumulative impacts have been identified, even though individual component impacts may be non-significant, mitigation measures should be considered in the EIS, along with mitigation for other impacts of the proposed action or impacts of other projects. In addition, it may be in the interests of a project sponsor to offer mitigation for lesser impacts, in order that they may be taken into consideration in the balancing of the positive and negative aspects of the proposed action.[See also Determination of Significance, beginning with Question 16].
41. Must all identified significant impacts be mitigated?
No. Mitigation of impacts must occur to the fullest extent practicable. Each agency must balance the need for particular mitigation on an individual project taking into account social, economic and other essential considerations. However, to support the balancing, the EIS must discuss the full range of potential mitigation measures.
42. Is off-site mitigation permissible?
In some cases, mitigation on the project site may not be feasible or would not adequately address an identified impact. In such circumstances, some form of off-site (or compensatory) mitigation may be offered. Off-site mitigation may address a shared impact, or may be an environmental benefit not directly associated with the proposed project that serves as a trade-off for unavoidable impacts on-site. Off-site mitigation should be explored only after all other reasonable means of reducing an impact have been considered. Some examples include the purchase of an off-site wetland, or creation of a new wetland; restoration of a degraded parcel within the general area of the project; or donation of land for recreation or park purposes.
43. How should growth-inducement be covered in an EIS?
Growth-inducing effects of an action may not be perceived as environmental issues, and may even be seen by project supporters as economic or social benefits. However, induced growth may be the prime source or cause of secondary environmental impacts.[See also Determination of Significance, beginning with Question 30). The growth inducement section of an EIS should thus describe any further development which the proposed action may support or encourage, such as:
- attracting significant increases in local population by creating or relocating employment, or by providing support facilities or services (stores, public services, etc.), or
- increasing the development potential of a local area, for example, by the extension of roads, sewers, water mains, or other utilities.
When discussing growth inducement in the EIS, it is important to quantify growth effects to the extent possible given available information, and to document sources of data and growth predictions. The purpose of the discussion of growth inducement in the EIS is to enable involved agencies to reach findings concerning both positive and negative effects of induced growth in the area of the proposed project.
44. What must be covered in an EIS regarding the use and conservation of energy resources?
The EIS should contain a description of energy sources to be used during both construction and operational phases of the proposed project. Anticipated levels of demand or consumption should be quantified or estimated as accurately as possible given available information. In addition, the EIS should also discuss alternatives and mitigation which could reduce energy and fuel demands during construction and long-term operation.
DEC has recently developed a policy to guide its own staff in assessing energy use and related greenhouse gas (GHG) impacts of proposed projects which are subject to EISs. Guidance provided includes methods for quantification of energy demands and resulting GHG emissions plus a range of possible measures to reduce energy demands from proposed projects.
45. Why must GHG be included in the energy use and conservation discussion?
There is a broad international scientific consensus that human activity-generated GHG emissions are driving global climate changes. These climate change impacts are the collective result of past and ongoing GHG emissions from industrial, transportation, commercial and domestic energy use as well as emissions from facilities like landfills, wastewater treatment plants, and very large livestock operations. Because global climate change impacts are becoming increasingly severe, dramatic reductions in GHG emissions are needed to minimize additional future impacts. GHG emissions sources are dispersed across economic, geographic, and demographic sectors, therefore, controls must be implemented across a similarly wide range of activities. Analysis and comparison of energy demands, including means to reduce energy use, within an EIS will enable involved agencies to identify reasonable energy conservation measures in their SEQR findings; by doing so, individual project contributions to GHG emissions can be minimized.
Furthermore, federal case law has repeatedly supported requiring GHG analyses in federal EISs, while several New York academic legal articles have argued strongly that SEQR's basic mandate demands that GHG emissions be addressed in NYS EISs. [See also Notable Court Decisions on SEQR].
46. Are there specific energy conservation measures which should be addressed in an EIS?
No, there are not measures that must be considered in every case. However, based on the specific energy demands of a proposed project, measures such as those on the following partial list should be included as alternatives or mitigation in the energy use and conservation discussion of an EIS:
- Modify overall project layout to minimize internal travel distances and optimize ability to use structure orientation and design to minimize energy demands;
- Incorporate methods to reduce fuel costs for structural heating or cooling; for example, insulation, heat pumps, or high-efficiency insulated windows;
- Include on-site energy sources not requiring fossil fuels, such as solar or wind generation, in project designs;
- Implement energy-efficient interior layouts and designs, including use of low-wattage lights, strategic layout of lighting, use of reflective materials and re-circulation of heat produced by lights;
- Investigate opportunities for recycling, such as use of construction products fabricated from recycled materials (such as recycled carpet squares, reprocessed glass tiling, or rubber floor coverings produced from waste tires), or using waste heat from an industrial plant to heat nearby facilities; and
- Optimize indirect energy conservation benefits, such as locating and designing a facility to accommodate mass transit, using shuttle buses to serve a facility, or designing a new development to minimize commuting and shopping travel distances while improving "walkability" within the development.
Proposed energy conservation measures which go beyond the minimum requirements of the State Energy Conservation Construction Code (9NYCRR Parts 7810 through 7816) should be specifically identified, such as LEED or Energy Star.
47. What must be addressed in an EIS regarding impacts on solid waste management?
Although some solid waste management issues may have been discussed elsewhere in the EIS in conjunction with development infrastructure or public service needs, explicit requirements added to the SEQR statute by the 1990 Legislature require that an EIS include a discussion of the impacts of a proposed action on solid waste management, where applicable and significant.
The draft EIS should note whether or not any aspect of the proposed action would generate any classes of solid waste, or would involve the transport or disposal of any solid waste. If so, the nature and amount of potential wastes should be identified along with the proposed methods of disposal. Further, when solid waste will be produced or handled as part of the proposed project, the draft EIS should analyze whether these activities would result in significant impacts based on the quantity or type of waste involved, or related to difficulties in handling those wastes. Where significant impacts are identified, alternative methods of handling and disposal, including waste minimization and re-use, should be addressed, as should mitigation of impacts. Time frames for both production of waste and the use of various disposal methods should be provided where applicable, and secondary impacts due to transport and disposal off-site should be discussed.
48. What is a "reasonably foreseeable catastrophic impact", and must it be covered in an EIS?
A "catastrophic impact" is one which is life threatening to a number of individuals; would cause extreme hardship to their physical well-being; or would cause widespread destruction of natural resources as a result of a proposed action. An impact is "reasonably foreseeable" if it could occur as a result of the action, even if the probability of such an occurrence is small. Note that the potential extreme hazards are inherent in the nature of the proposed activities, and can often be exacerbated by the large scale of the proposed action. Such actions as the development and operation of oil supertanker ports, liquid propane or liquid natural gas storage facilities, or hazardous waste treatment facilities may have such catastrophic impacts, whereas large shopping malls, residential developments or office complexes will not.
Reasonably foreseeable catastrophic impacts must be acknowledged and identified in an EIS. The discussion should include descriptions of areas, populations or resources potentially affected; a general discussion of the likelihood that the catastrophic impacts would actually occur; and a discussion of alternatives and mitigation measures intended to prevent such catastrophic impacts, including measures which have been incorporated into the proposed project design.
49. What if insufficient information is available about the chances for or consequences of reasonably foreseeable catastrophic impacts?
Section 617.9(b)(6) provides that when information about a reasonably foreseeable catastrophic impact to the environment is unavailable because the cost to obtain it is exorbitant, or the means to obtain it are unknown, or there is uncertainty about its validity, and such information is essential to an agency's SEQR findings, the EIS must:
- identify the nature and relevance of unavailable or uncertain information;
- provide a summary of existing credible scientific evidence, if available; and
- assess the likelihood of occurrence, even if the probability of occurrence is low, and the consequences of the potential impact, using theoretical approaches or research methods generally accepted in the scientific community.
50. What must be discussed in an EIS about consistency with state coastal management policies and local waterfront development programs approved under Article 42 of the Executive Law?
If a state agency is involved in an action for which an EIS will be prepared and the proposed action will occur within the New York State coastal area along the Great Lakes or the Atlantic Ocean and its estuaries as defined in Article 42 of the Executive Law, the EIS must contain a discussion of the effects of the proposed action on, and its consistency with, applicable state coastal management policies. Within any portions of the New York State coastal area where local waterfront revitalization programs have been approved, the EIS must contain a comparable discussion of the effects of the proposed action on applicable policies of the local revitalization program.[See 617.9(b)(5)(vi)]. See also Chapter 8c of this Handbook, Waterfront Revitalization and Coastal Areas Programs.
51. Must coastal or LWRP policies be considered only when a state agency is lead agency?
No. Even when a local agency is serving as lead agency, the state agency must still comply with the consistency review requirements of Article 42. Accordingly, the involved state agency should work closely with the local lead agency to ensure that an adequate discussion of coastal issues is incorporated into the EIS.
52. Must local agencies address coastal program consistency in an EIS if no state agencies are involved in the action?
No. There is no requirement for local governments to address coastal program consistency under Article 42 unless a state agency is involved in the overall action. However, if the local government has an approved local waterfront revitalization program, it has an obligation to discuss the relationship of the proposed action to such program as part of its description of the overall action in the EIS.
53. What appendices and supplemental documentation should be included in a draft EIS?
The following are typically included as appendices to the draft EIS:
- list of studies, reports and information considered and relied on in preparing the statement;
- list of all federal, state, regional, or local agencies, organizations, consultants and private persons consulted in preparing the statement;
- technical exhibits;
- relevant correspondence regarding the projects.
54. Must lengthy technical exhibits be included in every copy of the draft EIS?
When long or graphically elaborate technical exhibits must be made public, it is not necessary that they be distributed to every party requesting a copy of the draft EIS. Summaries of such technical exhibits should be included in all copies of the draft EIS. Sufficient copies of the detailed exhibit, as a separate document, should be provided to the involved agencies and made available in public locations, such as local libraries.
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