E. Involved Agency Responsibilities
In This Section You Will Learn:
- role of an involved agency; and
- the responsibilities of an involved agency.
1. What is an involved agency?
For SEQR purposes, an agency is "involved" when the determination is made that the agency has or will have a discretionary decision to make regarding some aspect of the action. Normally an agency becomes aware of its involvement when it receives an application or is contacted by another involved agency as part of a coordinated review.
2. What if an agency cannot be certain of its involvement until later?
An agency should be treated as an involved agency unless there is reasonable certainty that it will have no jurisdiction (i.e., no discretionary decisions to make) in the particular action. If an agency's jurisdiction is questionable it would be unwise for that agency to serve as lead agency. If the potential for a future discretionary decision is too speculative, the agency may be considered as non-involved.
3. What are the responsibilities of an involved agency under SEQR?
Depending on how an agency first becomes involved in an action, initial responsibilities will vary. Participation in the SEQR Process - A. Coordinated Review describes various involved agency roles and options in the coordination process. Questions 5, 6 and 7 in Participation in the SEQR Process - C. Establishment of Lead Agency address lead agency establishment and responsibilities, if an agency is the first one contacted by an applicant. Once the determination that an involved agency is not serving as lead or is not proceeding alone with an uncoordinated review, that agency's responsibilities in a coordinated review are as follows:
Before the lead agency has made a determination of significance, all remaining involved agencies should:
- Make certain the lead agency understands the extent of the involved agency's jurisdiction; and
- Provide the lead agency with observations and concerns about the proposed action and its potential environmental impact so the lead agency may consider them in making a determination of significance.
When a lead agency has made a negative determination of significance (negative declaration) each remaining involved agency may make its final decision on the action after completing any other required procedures.
When a lead agency has made a positive declaration each involved agency should:
- Participate in scoping, making the lead agency aware of that agency's concerns and technical requirements identify potential significant environmental impacts and suggest alternatives and mitigation;
- Assist the lead agency in reviewing a draft EIS for adequacy, if requested;
- Participate in any hearings, as appropriate;
- Provide formal agency comments during the public review period;
- Assist the lead agency in responding to substantive comments on the final EIS, if requested; and
- Prepare the involved agency's own separate SEQR findings before making its final decision.
4. Can an involved agency influence the determination of significance by the lead agency?
Yes. All involved agencies are encouraged to submit comments during the coordination period. Comments that deal with an agency's specific area of interest or jurisdiction are especially appropriate. However, there is no provision in SEQR that guarantees that the lead agency will make a particular determination of significance.
5. Does an agency lose its decision making authority with respect to an action if it is not the lead agency?
No. All underlying jurisdictions of each involved agency with respect to an action remain unchanged.
6. If an involved agency has no concern about the impacts of the action, must it respond during the coordination process?
If an agency does not respond to a request for coordination, the agency will be assumed to have no comments. However, it is recommended that all solicited agencies acknowledge receipt of a coordination inquiry.
7. If an involved agency has no concerns about an action, may it proceed to its final decision during the coordination period?
NO! All involved agencies are prohibited from making final decisions or commitments before the SEQR process is completed. [see 617.3(a)] (link leaves DEC website.) Agencies making such decisions and applicants accepting such decisions do so at their own risk, because such decisions may be declared null and void through court action, on the grounds that they are procedurally flawed.
8. If an involved agency has the opportunity, but does not participate in the public comment period, must it still consider the draft and final EIS in its decision making?
Yes. If the involved agency fails to participate in the EIS process, it must still consider the EIS as the basis for its written SEQR findings.
9. What recourse does an involved agency have if it has participated in the EIS process but its concerns have been ignored or inadequately addressed?
It is important for an involved agency which has substantive concerns regarding the adequacy of the draft EIS to make this known to the lead agency. If the involved agency's comments are then disregarded or responded to unsatisfactorily, it may take such deficiencies into account in making its own decision regarding the action which could result in negative SEQR Findings and a denial. Alternatively, the involved agency could commence litigation challenging the sufficiency of the Final.
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