J. Fees for EIS Preparation or Review
In This Section You Will Learn: about SEQR fees
1. Does SEQR allow a lead agency to recover costs from an applicant for preparing or reviewing an EIS?
Yes. The SEQR statute and regulations (link leaves DEC website) allow a lead agency to recover its costs for either the preparation or the review of an environmental impact statement, but not both.
2. Can all involved agencies charge for their review of an EIS?
No. Only the lead agency may charge SEQR fees. However, because the lead agency's review must include the concerns of all other involved agencies, it may use SEQR fees to cover the costs of hiring expertise to address environmental issues raised by other agencies.
3. Must a lead agency always charge a SEQR fee for its EIS review?
No. SEQR fees are allowed, but a lead agency is not obligated to impose them.
4. Are there limits on allowable SEQR fees?
Yes. Only actual review or preparation costs may be charged. Additionally, the SEQR regulations specify maximum fees relative to total project value for three categories of projects. Such maximum fees may only be charged if review or preparation costs equal or exceed them. The limits are:
- For residential projects, two percent of the sum of land costs plus site improvement costs, not including costs for buildings or structures;
- For non-residential projects, one half of one percent of the total project cost, that is, costs for land, site preparation, utility connections, plus labor and materials; or
- For mineral extraction projects, one half of one percent of the cost of preparing the site for mining, that is, costs for clearing, grubbing, removal of overburden, utility services, access roads and structures.
5. How is the "cost of land" defined?
The regulations define land costs as the higher of either the actual cost paid to obtain the property, or the current fair market value of the land (based on current assessed valuation and considering the equalization rate).
6. In calculating the allowable SEQR fee for a residential subdivision, what is a "site improvement"?
The following are examples of site improvements:
- electric service
- water service
- sewage collection and treatment
- parking areas
- retaining walls
- golf course
7. In calculating the allowable SEQR fee for a residential subdivision, what is a "building and/or structure"?
The following are examples of a building or structure:
- residences (includes single and multiple family, attached and detached);
- garages, carports and parking ramps;
- storage sheds;
- decks; or
- community buildings (clubhouses, mailrooms, pool area buildings, and picnic shelters).
8. In calculating the allowable SEQR fee for a non-residential construction project, what is included in "total project costs"?
Total project costs would include the costs for:
- supplying or installing utility services such as sewer, water, gas and electricity;
- site preparation which includes clearing, grubbing, grading and drainage; plus
- labor and materials for construction of the facility, not including equipment costs.
Equipment is anything that is removable or not integrally part of the structure.
9. May a lead agency charge SEQR fees to cover its expenses for all steps of the SEQR process?
No. SEQR fees may be charged only for the preparation or review of a draft EIS and final EIS. Lead agency expenses for environmental assessments and determinations of significance are not covered. Once a positive declaration has been made, SEQR fees may be charged for scoping as well as for preparation or all subsequent review of the draft and final EIS.
10. May preparation of lead agency findings be covered by SEQR fees?
11. May a lead agency recover legal costs as part of their SEQR fees?
SEQR fees are intended to cover costs of scoping plus preparation or review of an EIS by the lead agency, including preparation of responses to questions and issues raised by others regarding the draft EIS. Most allowable review costs by a lead agency are likely to be incurred for technical reviews by engineering, planning and environmental consultants, but if a specific legal interpretation is needed to support discussion of some issues within the EIS (e.g. the legal status of land for an alternative development site), this legal expense could be allowed as part of a SEQR fee. SEQR fees, however, are not intended to cover a lead agency's legal defense of challenges to its acceptance of an EIS, or to its conduct of the SEQR process.
12. Can a lead agency apportion the cost of preparing and reviewing an EIS with multiple project sponsors?
Yes. When a lead agency has prepared a generic EIS, typically to address the cumulative impacts of several projects within a common geographic area, the regulations allow it to recover a reasonable share of its costs from project sponsors. Apportioning costs among project sponsors will be dependent on the type of projects, and the extent of impacts for which each applicant may be responsible. The apportionment can be based on project costs, project area, population or occupancy, or on measures of potential impacts, such as amount of traffic, road frontage, shoreline, wetland or vegetative coverage, number of school children, or any other reasonable methods. A formula combining several factors may be appropriate.
Alternatively, if all or most of the potential applicants are known in advance, they may be encouraged to directly contribute to the lead agency's costs of the EIS. The lead agency could also require individual project sponsors to prepare individual EISs. Project sponsors could also agree to jointly fund a single EIS, which could be less expensive than individual studies. Acting among themselves, private project sponsors may apply any apportionment formula they deem appropriate.
13. May a project sponsor request an estimate of potential SEQR fees for a specific project?
Yes. The SEQR regulations provide that a project sponsor who chooses to not prepare a draft EIS, may request the lead agency to provide an estimate of the costs which the lead agency would incur to prepare the EIS. However, in the case of lead agency review costs for a draft EIS submitted by the project sponsor, there is no such obligation. A lead agency is less likely to be able to provide an accurate estimate of review costs, since review costs are related to the type and extent of review necessary, which can only be determined during the process of such review. Although there is no obligation on the lead agency to provide estimates of review costs, it may do so, at its convenience.
14. May a project sponsor dispute the SEQR fees charged by a lead agency?
Yes. A project sponsor may make a written request to the lead agency setting forth reasons why it believes fees may be inequitable. The chief fiscal officer of the lead agency, or that officer's designee, must prepare a written response, after examining the agency's records, stating why the applicant's claims are valid or invalid. Thus, to avoid or minimize disputes, the lead agency should provide the project sponsor with reasonably detailed statements justifying review costs.
15. Will an applicant's appeal of SEQR fees delay the review process and decision?
The SEQR regulations direct that any SEQR fee appeal procedure may not interfere with or delay the conduct of the SEQR process, nor prohibit an action from being undertaken. However, while SEQR may be completed, provisions of other regulatory procedures may limit the lead agency's ability to issue approvals until payment of all fees has occurred.
16. How can a local lead agency ensure that it will be reimbursed for its review of an EIS?
There are several methods by which a local lead agency may recover its review costs. Regardless of the method chosen, a lead agency must be able to render an accounting of their actual costs.
- After scoping, a lead agency may require that an account be set up by the project sponsor, based on estimated costs of review.
- The lead agency may establish a pay-as-you-go review procedure, charging the applicant at established intervals during the review process for lead agency costs to date.
- If SEQR fees have been assessed in any of the above ways, and the applicant fails to pay such fees, the lead agency may choose to withhold its final decision.
17. Must a SEQR fee be paid even if a project application is denied after the EIS process has been completed?
Yes. Project denial or selection of an alternative not preferred by the project sponsor does not absolve a project sponsor from SEQR fee payment obligations.
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