D. Review of the Draft EIS (DEIS)
In This Section You Will Learn:
- how completeness and adequacy are assessed in a review;
- the role of lead agency and involved agencies in the review of a DEIS; and,
- how the public is involved in the review of the DEIS.
1. Who determines the completeness and adequacy of a draft EIS for public review and comment?
The lead agency must decide whether a draft EIS is complete and adequate for public review and comment, keeping in mind that the purpose of the public comment period is to allow all involved agencies and the public to review the draft EIS and comment on its merits.
2. What is the basis for determining the adequacy of a draft EIS?
The lead agency should rely on the standards in 617.9, which describe the required content of EISs. Additionally, a written scope, if one was prepared, provides a detailed catalogue of the materials which the lead agency identified as necessary for inclusion in the EIS. The lead agency should ensure that all relevant information has been presented and analyzed, but should neither expect nor require a "perfect" or exhaustive document. The degree of detail should reflect the complexity of the action and the magnitude and importance of likely impacts.
A draft EIS that is adequate to be accepted for public review should describe the proposed action, alternatives to the action, and various means of mitigating impacts of the action. The draft EIS should identify and discuss all significant environmental issues related to the action, however, the draft EIS will not necessarily provide a final resolution of any issues. Since one of the major purposes of a draft EIS is to give the public an opportunity to comment on the environmental issues raised, as well as the possible alternatives and mitigation offered to address those issues, settling on a resolution of one or more issues prior to public review would actually be counter to the intent of SEQR.
3. What must the lead agency do if it finds a draft EIS, as submitted by the project sponsor, to be inadequate for public review?
If the submitted draft EIS is determined to be inadequate for public review and comment, the lead agency must identify all deficiencies in writing, and provide this information to the project sponsor.
4. Is there a time frame for the lead agency to determine the completeness and adequacy of a draft EIS submitted by an applicant?
Yes. The lead agency has forty five (45) days to determine completeness and adequacy of a draft EIS for public review, or to specify the reasons for its unacceptability. However, for an unusually complex or extensive EIS, a lead agency may negotiate with the project sponsor to establish a longer review period.
5. If a draft EIS is found deficient, is there a time frame for the sponsor to provide a revised document?
No. As with the initial draft EIS, there is no time frame for the project sponsor to make revisions to remedy the deficiencies in the first version of the draft EIS.
6. What is the time frame for a lead agency to review a resubmitted EIS?
The lead agency has thirty days to review the resubmitted draft EIS. The lead agency must then either accept the resubmitted draft EIS as adequate for public review and comment, or again provide the project sponsor with a written list of all deficiencies in the resubmitted draft EIS.
7. Is there a limit on the number of times a lead agency may reject a submitted draft EIS?
The SEQR regulations place no limit on rejections of a submitted draft EIS, other than requiring that the lead agency must identify the deficiencies in writing to the project sponsor. It is the lead agency's responsibility to clearly define major, substantive deficiencies so that the sponsor is able to make revisions responding to those comments. The goal of the lead agency in its review of the submitted draft EIS should be to advance the review of the proposed project to the public review phase. Therefore, a lead agency should provide sufficient guidance in the initial description of deficiencies to enable the project sponsor to develop an acceptable draft EIS with one revision effort, and only reject a resubmission if that resubmitted draft EIS still contains errors or omissions which are essential to the public's understanding of the proposed project.
8. What may a lead agency do if a project sponsor refuses to make requested changes?
If a lead agency's request for the inclusion of necessary information is ignored or refused, the agency may continue to reject the resubmitted draft EIS.
Alternatively, as long as the draft EIS contains an accurate description of the proposed action, plus reasonably supported discussions of significant impacts, alternatives and mitigation measures requested by the lead agency, the lead agency may choose to release that draft EIS for public review, even though the lead agency believes that the draft EIS still contains deficiencies. When there is this kind of fundamental disagreement between the lead agency and the preparer of the draft EIS, the lead agency may explain the disagreement in its Notice of Completion and invite public comment related to the disagreement, in addition to comments on the draft EIS itself. Additionally, the lead agency should repeat its criticisms of the draft EIS as written comments during the public review and comment period. This process will allow the disagreement concerning EIS content to be resolved via the lead agency's responses to comments in the final EIS.
9. Must differences between the project sponsor's and lead agency's experts regarding interpretation of a technical issue be resolved prior to the lead agency determining to accept a draft EIS as complete?
No. It is not necessary to resolve these types of disputes before accepting the draft EIS as complete. In cases where there are valid differences in the interpretation of a technical issue, the lead agency should include both interpretations in the draft EIS. Providing both positions allows a reviewer to reach an independent determination regarding the impact.
10. May an involved agency participate in the determination of the adequacy of a draft EIS?
The lead agency must make the final decision regarding adequacy of a draft EIS. However, the lead agency may consult with other involved or interested agencies, particularly when an involved or interested agency possesses unique expertise related to significant impacts, or if a particular study or analysis was required in the EIS based on input from that involved or interested agency.
11. How must the public be informed that the lead agency has accepted a draft EIS for public review?
The lead agency must prepare and file a Notice of Completion consistent with 617.12 to announce that it has accepted the draft EIS and opened the public review and comment period. The Notice of Completion, with a copy of the draft EIS, must be filed with the appropriate DEC regional office, with the involved agencies, and with the chief executive of the political subdivision in which the action is principally located. If the action involves a project sponsor, it must receive a copy of the completion notice.
One of the required recipients of the Notice of Completion of a draft EIS is the "Environmental Notice Bulletin" ("ENB"), a weekly state wide publication by the DEC. Filing the Notice with the ENB provides publication in one weekly issue. It is good practice for a lead agency to also provide some local notification of availability of the draft EIS, such as through use of local publications or agency/municipal bulletin boards.
A 2005 amendment to SEQR requires that draft and final EISs be posted on publicly accessible web sites. Additionally, it is good practice to place one or more review copies of the accepted draft EIS in accessible public venues such as libraries and municipal offices. Copies of the draft EIS should be provided to any person who has requested a copy, subject to a fee for copying costs, unless an unreasonable number of copies have been requested. The regulations allow a lead agency to place copies of the EIS in a public library instead of making a large number of individual copies.
12. How many copies of a draft EIS must be provided?
A project sponsor is required to provide sufficient copies of the draft EIS to meet the filing requirements of 617.12(b). Those interested agencies, organizations and individuals requesting copies prior to lead agency acceptance of the draft EIS should be included in this initial count. Added to such figure should be an estimate of the number of copies which will be needed to satisfy requests made by the public, once a notice of completion of the draft EIS is released.
If the draft EIS is complex or voluminous, it may not be reasonable to make copies available to all persons requesting it. In addition, certain supplemental information such as large maps, statistical data and technical reports may be impractical to reproduce in quantity. Part 617 provides that where sufficient copies of a draft EIS are not available to meet public interest, the lead agency must provide additional copies to local public libraries. Such copies should include all supplemental information. A copy of all documents should also be available for public review in the office of the lead agency. Review copies of the draft EIS should be in place and available when the Notice of Completion is published.
13. How long is the public review period for a draft EIS?
The minimum public review period is thirty days, calculated from filing of the Notice of Completion. If the draft EIS is lengthy, there is delay in distribution of copies, or there is substantial public interest, the lead agency should extend the review period. In practice, the time allowed for draft EIS review is often considerably longer than the minimum. The lead agency may wish to negotiate a mutually acceptable extension with the project sponsor. If a hearing is held to receive comments on the draft EIS, the SEQR regulations require that the review period must remain open for 10 days following the close of the hearing, for the receipt of additional written public comments.
14. How should the lead agency calculate the public comment period?
The draft EIS cover sheet is required to show the actual date on which the lead agency decided to accept the draft EIS as adequate for public review, however, the lead agency should establish the public comment period based on when the Notice of Completion will actually be published and the draft EIS will be available to the public.
15. Should an involved agency comment during the public review period?
Yes, because the involved agency must make its own findings in support of its jurisdictional decision following the lead agency's issuance of the final EIS. By commenting on the draft EIS, the involved agency can ensure that its concerns will be officially recognized and responded to in the final EIS. If an involved agency has participated in scoping a draft EIS, it is especially important that the agency review the draft EIS and specifically comment on those sections responsive to its scoping comments.
16. Is it appropriate for the lead agency to comment during the public review period?
Yes. Although the lead agency has played an important role in preparation of the draft EIS, there is no guarantee that the lead agency's concerns have all been addressed satisfactorily. The lead agency may use comments on the draft EIS to raise issues which it anticipates will need to be addressed in its findings statement. Lead agency comments on a draft EIS may be an essential step if the preparation of the draft EIS has been contentious, because these comments can provide the lead agency with a means to address issues or analyses which the sponsor refused to include.
17. How can an agency or member of the public comment effectively on a draft EIS?
Commenting on the draft EIS is a valuable way for state or local agencies and the public to have direct input into the decision making process. This agency and public input can be particularly helpful to the lead agency in determining whether impacts on resources outside the lead agency's fundamental jurisdictions and expertise have been adequately addressed. Agencies should focus their comments on topics which relate to their functions or expertise.
The following guidelines are good practice by anyone making comments:
- Focus on major issues, not on problems with wording or minor discrepancies.
- If oral comments are made at a hearing, back them up with written comments covering at least the main points made at the hearing. (Remember that the record must remain open for at least ten days after the close of a hearing for submission of additional written comments.)
- Consider whether studies conducted and other sources cited are adequate to support the analyses and conclusions reported in the draft EIS. If there are deficiencies in the discussions of potential impacts, alternatives or mitigation, the commenter should identify those, and may suggest additional or more appropriate studies or sources to augment the deficient discussions.
- Give careful attention to the comparative assessment of alternatives presented in the draft EIS, and offer additional reasonable alternatives, if they can be identified by the commenter.
- Review all mitigation measures which are analyzed, and suggest additional reasonable measures to reduce adverse environmental impacts, if they can be identified by the commenter.
18. May individuals comment on a draft EIS after the close of the official comment period?
Yes, although the lead agency is not obligated to respond to late comments in the final EIS, even if the comments are substantive. However, the lead agency may choose to consider those late comments in the final EIS if the late comments identify new concerns of significant adverse environmental impacts not addressed in the draft EIS or discussed in timely comments by others.
In general, late comments which only reiterate comments already expressed by others will not be addressed by the lead agency.
E-mail us if you wish to submit comments. Please be sure to indicate which section or item you are commenting on, and include your name.