C. Establishment of Lead Agency
In This Section You Will Learn:
- how the lead agency is established.
1. What is the purpose of a lead agency for SEQR?
The purpose of having a lead agency is to coordinate the SEQR process so that when an action is to be carried out, funded or approved by two or more agencies, a single integrated environmental review is conducted. This lead agency is responsible for making key SEQR determinations during the review process.
2. Is designation of a lead agency always required for a Type I action?
Yes. There must be a lead agency for all Type I actions. If there is only one involved agency that agency is the lead agency.
3. Is lead agency designation optional for Unlisted actions?
Yes. For Unlisted actions, establishing a lead agency is optional unless one of the involved agencies determines that an EIS or a conditioned negative declaration must be prepared. Without coordination, each involved agency must make its own determination of non-significance.
4. Which agency should be lead?
The lead agency is normally the involved agency principally responsible for carrying out, funding or approving an action.
5. How is the lead agency chosen?
The agency undertaking a direct action or the first agency to receive a request for funding or approval should circulate a letter, Part I of the EAF and a copy of the application, including a site map, to other potentially involved agencies. That agency may choose to indicate its desire to serve as lead or may point out that its jurisdiction may be minimal compared to other agencies. If it has indicated a desire to become lead agency, it may also note its intended determination of significance. The letter should request all other involved agencies to state their interests and concerns regarding selection of lead agency and potential impacts of the overall action. The letter should also note that an agency's failure to respond within 30 days of the date of the letter will be interpreted as having no interest in the choice of lead agency and having no comments on the action at this time.
If an involved agency desires to be lead or objects to another involved agency being lead or has comments that could influence selection of the lead agency, it should advise the other involved agencies as soon as possible. Although written comments should be provided for reference purposes, initial communication by phone or direct meetings may resolve lead agency questions more quickly, avoiding delays and impasses. If the initial agency is not the one finally established as lead, then that agency has a responsibility to forward to the lead agency all comments that it may have received regarding the action which could influence a determination of significance.
6. What are the responsibilities of the involved agency initiating the establishment of lead agency?
The involved agency initiating lead agency establishment must preliminarily classify the action (i.e., Type I or Unlisted) and, if Type I, must follow the procedures described in question number 5 above so that a lead agency is established. For Unlisted actions, it may do the same or opt to proceed under uncoordinated review to process the application independently.
7. Must the first agency to receive an application serve as lead agency?
No. Although it is responsible for starting the process, the first involved agency receiving an application has no obligation to serve as lead agency, unless there are no other involved agencies.
8. Are there time frames for establishing lead agency?
Yes. The selection of lead agency must be accomplished within 30 calendar days of the date that the completed Part I of the EAF and other application materials were sent to the other involved agencies.
9. Can a lead agency be established in less than 30 days?
Yes. The time period allowed for establishing lead agency is a maximum. If all of the involved agencies can agree on lead agency in a shorter period of time, then it is not necessary to wait for the 30-day period to expire before going on to the next step in the process. However, the full 30-day period must be provided if there is no response or if an involved agency requests that it be allowed 30 days in order to make its decision (also see the section on Time Frames to be posted soon).
10. What if two or more of the involved agencies cannot agree on which one will serve as lead?
If, at the end of the 30-day period, the involved agencies cannot agree on the lead agency, any one of the involved agencies or the applicant may, in accord with 617.6(b)(5), request the Commissioner of DEC to designate a lead agency.
11. What if no involved agency expresses a desire to take the lead role?
If no lead agency can be established during the 30-calendar day lead agency solicitation period, the matter should be treated as a lead agency dispute in the same manner as the situation where two or more involved agencies desire to serve as lead. The Commissioner of DEC must be called upon to resolve the dispute.
12. Can one involved agency designate another involved agency to serve as lead?
No. Only the Commissioner of DEC, in resolving a lead agency dispute may "designate" a lead agency. In all other cases, lead agency is "established" by mutual agreement among involved agencies.
13. Can a lead agency be pre-established?
Similar actions that routinely involve the same group of involved agencies are suited for the pre-designation of a lead agency. For recurring actions, 617.14(d) encourages agencies to enter into cooperative agreements (such as memoranda of understanding) to identify the appropriate lead agency. Each time an action covered by the agreement is presented for approval, the pre-identified agency will automatically assume lead agency status as agreed to by the involved agencies. This eliminates the need for repetitive lead agency determinations and thus expedites future significance determinations.
14. Can an applicant select the lead agency?
No. Lead agency can only be established by agreement of the involved agencies or, in case of disagreement, through designation by the Commissioner of DEC.
15. Can an applicant cause a lead agency to be designated?
Yes. If no agency has agreed to become lead by the end of 30-day establishment period, the applicant can petition the Commissioner under 617.6(b)(5) to designate a lead agency.
16. Is a formal resolution of a board necessary in order to be recognized as lead agency?
Not necessarily; it depends on the nature of the agency. Many agencies of the executive branches of government may operate through their executive officers or delegated staffs to undertake the lead agency role. In the case of legislative bodies or agencies which function through boards or commissions in their decision making, it may be necessary for them to make some type of formal resolution regarding their assumption of lead agency role if they have not delegated such function to an officer or support staff.
17. Are Co-Lead Agencies allowed under SEQR?
The concept of co-lead agency is not specifically authorized by 6 NYCRR 617 nor is it expressly prohibited. DEC has used this approach for direct actions that involve another state agency. However, other agencies have found the co-lead agency procedure less desirable. It seems that when the two agencies are in agreement concerning decisions, the co-lead agency approach can work. But, when there are differences of opinion between the two agencies the resolution of the disagreement becomes a problem usually resulting in a delay in decision-making. When the action involves an applicant, the delay and the uncertainty regarding resolution of the dispute is unfair to the applicant.
The use of co-lead agencies should be avoided unless the two agencies can devise a formal mechanism for resolution of disputes. This mechanism should not result in a delay in timely decision-making. Absent a formal dispute resolution process, it is suggested that a single lead agency be established with the other agency actively involved in the process but not as a co-lead agency.
18. Can a Lead agency ever change during the SEQR process?
Yes. The role of Lead agency can be re-established under certain circumstances where:
a supplement to a Final EIS or a generic EIS is required;
the original lead agency's jurisdiction has been eliminated by a project change; or
upon the agreement of the applicant and the involved agencies prior to the acceptance of the draft EIS.
19. Who can request that lead agency be re-established?
Depending on the circumstances, any involved agency, including the lead agency, or the project sponsor can request that lead agency be re-established.
20. How are disputes regarding the re-establishment of lead agency resolved?
Disputes over the re-establishment of lead agency are subject to the same procedures as all other lead agency disputes (see Participation in the SEQR Process - H. Lead Agency Disputes).
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