"EIS on the Web" Requirement
A 2005 amendment to SEQR (Chapter 641 of the NYS Laws of 2005; "Ch. 641") requires every Environmental Impact Statement (EIS) - - Draft EIS (DEIS) and Final EIS (FEIS) - - to be posted on a publicly accessible Internet Web site, as of February 26, 2006. A DEIS should be posted as soon as it is accepted and remain posted until the FEIS is accepted. The FEIS should be posted when completed, and must remain posted until one (1) year after all final approvals have been issued for the project that is the subject of the FEIS. For actions where a Generic Environmental Impact Statement (GEIS) has been prepared, the Final GEIS should remain posted for at least one year or longer if reviews of the matter are still pending.
The new law provides an exception to the posting requirement in cases where an agency concludes that posting is "impracticable", but it provides no definition of impracticable. Accordingly, any agency using the "impracticable" exemption should document the rationale in its records concerning that EIS.
DEC is investigating a range of alternatives to guide state and local agencies in complying with this new requirement as well as with existing federal and state accessibility and content standards. When those requirements have been harmonized, DEC intends to develop regulations to more specifically direct compliance. In the meantime, however, there are several alternatives available to agencies which will satisfy the basic requirements of Ch. 641. These alternatives include, but are not necessarily limited to:
- Lead agency may post to its own website
- Requires capacity to post, update and monitor issuance of all involved approvals
- Federal standards relating to accessibility for people with disabilities apply to government websites
- An involved agency may host the EIS
- Would be responsible for all updating and for maintaining postings for required statutory periods
- Federal accessibility standards would still apply
- Lead agency may direct sponsor to post on sponsor's own, or a consultant's, website
- Website must be "publicly accessible", that is, not password protected and without charge for access by readers
- All involved agencies should include selected site's URL in all notices regarding the EIS
- May also make hard copies of documents, or sections like maps and figures, available through document repositories like local libraries or town/village halls.
- Post only executive summary of each EIS
- Good practice to include list of hard-copy repositories with summary and in all notices if full document not posted
- Case-specific solutions if neither lead agency nor applicant have capacity to post the EIS's and maintain the Web page
- Include relevant URL's and repository locations in all notices
Rely on "impracticable" exemption:
- No change from current distribution of DEIS/FEIS copies
- Suggest that a file note document basis for determining that posting is "impracticable"
What determines whether an EIS is covered by the new law?
The date of receipt of the document by the lead agency determines whether it must be posted under Ch. 641. Thus, if a DEIS or FEIS is received after February 26, 2006, the posting requirement applies.
Who is responsible for implementing this new law?
Ch. 641 does not explicitly direct any specific agency or agencies to implement it. Since the existing SEQR statute and regulations require the lead agency for each EIS process to be responsible for administrative details related to the DEIS and FEIS, the lead agency would also be looked to for implementation of the mandate to post all EIS's on the Web.
Is there a required site which agencies must use to post EIS's?
NO. At this point, each lead agency may choose on which Website(s) it will have EIS's posted.
May a private hosting service charge for posting an EIS?
Yes, a private entity may charge the lead agency or a project sponsor/consultant for hosting an EIS.
May the EIS host charge readers of EIS's?
No. Any site which charges a reader would not be considered "publicly accessible".
What is the role of "accessibility"?
All entities accepting federal funding must meet federal standards governing accessibility of Web materials by people with disabilities and NYS accessibility standards similarly govern NYS agencies. This poses constraints on the formats which agencies may use to post documents. It specifically limits agencies' ability to use non-scalable formats.
Laws of New York, 2005
AN ACT to amend the environmental conservation law, in relation to making environmental impact statements available on the Internet.
Became a law August 30, 2005, with the approval of the Governor. Passed by a majority vote, three-fifths being present.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
§ 1. The fifth undesignated paragraph of subdivision 4 of section 8-0109 of the environmental conservation law, as amended by chapter 219 of the laws of 1990, is amended to read as follows:
The draft statement shall be filed with the department or other designated agencies and shall be circulated to federal, state, regional and local agencies having an interest in the proposed action and to interested members of the public for comment, as may be prescribed by the commissioner pursuant to section 8-0113. In addition, unless impracticable, the draft statement shall be posted on a publicly-available Internet website. The website posting of such draft statement may be discontinued when the environmental impact statement is posted pursuant to subdivision six of this section.
§ 2. Subdivision 6 of section 8-0109 of the environmental conservation law, as amended by chapter 252 of the laws of 1977, is amended to read as follows:
6. To the extent as may be prescribed by the commissioner pursuant to section 8-0113, the environmental impact statement prepared pursuant to subdivision two of this section together with the comments of public and federal agencies and members of the public, shall be filed with the commissioner [and], made available to the public, and, unless impracticable, posted on a publicly-available Internet website prior to acting on the proposal which is the subject of the environmental impact statement. The website posting of such statement may be discontinued one year after all necessary permits have been issued by the federal, state and local governments.
§ 3. Paragraph (f) of subdivision 2 of section 8-0113 of the environmental conservation law, as added by chapter 612 of the laws of 1975, is amended to read as follows:
(f) Provision for the filing and circulation of draft environmental impact statements pursuant to subdivision four of section 8-0109, and environmental impact statements pursuant to subdivision six of section 8-0109, including, in addition to any other circulation and public availability requirements, making such statements available free of charge to the public and government agencies on the publicly-available Internet website, unless impracticable. Printed filings and public notices shall clearly indicate the address of the website at which such filing is posted;
§ 4. This act shall take effect on the one hundred eightieth day after it shall have become a law.
EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.
(Text copied verbatim from certified slip copy; format modified to fit page.)