B. Decisions Subject to SEQR: The Who, What, and When
In This Section You Will Learn:
- what types of decisions are subject to SEQR
1. What kinds of agency decisions are subject to review under SEQR?
All "discretionary" decisions of an agency to approve, fund or directly undertake an action which may affect the environment are subject to review under SEQR. Some decisions, however, appear on a predetermined list of types of actions (Type II list of the SEQR Regulations - 6 NYCRR Section 617.5) which have already been determined not to have a significant adverse impact on the environment or have been otherwise precluded from environmental review under SEQR.
2. What is meant by "...decisions to approve, fund or directly undertake an action"?
Proposed actions frequently involve applications or requests by private individuals or organizations, or even by other public bodies, for agencies to issue a permit, otherwise authorize or provide financial support to such actions. A decision by an agency to deny, permit, conditionally permit or financially support an action by other parties is subject to SEQR. In addition, decisions by agencies to directly undertake a physical action or to directly adopt, amend or modify laws, rules, regulations, procedures, plans or policies are subject to review under SEQR.
3. What are "discretionary" decisions?
Discretionary decisions are those where there are choices to be made by the decision makers that determine whether and how an action may be taken. Examples of discretionary decisions are:
- zoning changes,
- preliminary/final plat approval,
- site plan approval,
- special use permits,
- funding of projects by local/state IDA's,
- construction of highways/municipal buildings, and
- environmental permits issued by DEC.
4. What are "non-discretionary" decisions?
Non-discretionary or "ministerial" decisions are based entirely upon a given set of facts, as prescribed by law or regulation, without use of judgment or individual choice on the part of the person or agency making the decision. For example, the issuance of a building permit to construct a residence in an approved subdivision would be ministerial if the plans show the structure will conform to all local building codes. Another example of a ministerial act would be the issuance of a dog license by a town clerk. If the owner can show proof of required vaccinations and can pay the proper fee, the clerk has no discretionary decision - the license must be issued. There is no choice involved on the part of the issuing agent or governmental entity.
In other instances, the building inspector is required or authorized by law to vary or request modifications in the qualifying criteria for the permit, based on environmental considerations, and such building permit would be subject to SEQR. For example, the proposed construction of an office building in a commercial zone where the building code enforcement officer has been designated as the reviewer for certain aspects of construction review which are normally exercised under site plan review. This exercise of discretion by the building inspector prevents this activity from being a ministerial act, and it should be reviewed under SEQR before a decision is made.
5. What are "actions" under SEQR?
Actions under SEQR include:
- physical projects or activities such as construction of a shopping center or residential development, building a road, dredging a stream or mining gravel;
- adoption or administration of rules, regulations or procedures, by a government agency, such as local zoning, public health regulations, wetland protection or handling of toxic wastes; or
- decisions by agencies on plans or policies such as land use plans, formation of special districts or establishment of policies on use of public lands.
A single overall action may include a combination of the above activities.
6. Is there a distinction between "decisions" and "actions" in applying SEQR?
Yes. In order for SEQR to be applied to any proposed action or related series of actions there must be at least one discretionary decision required by an agency. Often there are several such decisions necessary in order to carry out the action. For example, the "action" of developing a residential subdivision may require separate approval decisions by a town planning board for the subdivision plat, town board or zoning board of appeals if there is a zoning decision, or county health department if on-lot sewer and water facilities are required, and, possibly by the state Departments of Transportation or Environmental Conservation, if highway access or stream or other environmental permits are needed. No decision to approve, fund or directly undertake any part of an action should be made by any of these agencies until SEQR requirements are met. This SEQR review of an action may be done as part of a coordinated review process that involves several governmental agencies.
7. What are direct actions?
Actions that are proposed and undertaken by a local or state agency are called direct actions. This applies to construction "actions" whether agency staff or contractors actually do the design work or the on-site construction work or both.
8. May an agency deny an application for an action subject to SEQR without going through the SEQR process?
No. An agency must comply with SEQR before denying an application that is subject to review under SEQR. Failure by the lead agency to comply may leave the lead agency vulnerable to a procedural challenge to the denial.
9. Isn't it a waste of agency resources and unfair to the applicant to conduct a SEQR review on a project the agency knows it will deny?
There are three reasons why DEC recommends that the SEQR process be completed before the issuance of a denial.
- First, the applicant has a right to due process. Many applicants believe that, given the chance, they can provide the agency with the information necessary to support their application; and they welcome the opportunity to participate in an environmental review.
- Second, the agency might find, following the conduct of the environmental review, that its initial position was not supported by the facts. Contrary to its original belief, the agency may find that the action is approvable.
- Third, completion of the SEQR review gives the agency the strongest possible record to support its decision. If litigation over the denial is likely, having a good SEQR record gives the agency the best environmental basis for defending its decision.
10. What if it is clear that the application will not meet established standards for permit issuance. Does the agency have any options?
Yes. If it is clear that the application will not meet regulatory standards for issuance, and a denial of the application is unavoidable, the agency has some options to consider:
- Explain to the project sponsor how the project fails to meet standards for issuance and recommend that the application be withdrawn. Sometimes a clear explanation of the standards and why those standards cannot be met is sufficient to cause the project sponsor to withdraw the application before significant time or money is spent on the review.
- Explain to the project sponsor how the project fails to meet standards for issuance and suggest changes that might make the project more compatible. Some agencies are more comfortable with this approach than others. Agency staff should never redesign a project for an applicant because this will lead to the expectation that the redesigned project will automatically be approved. You can, however, offer suggestions on how the project sponsor can make his or her project more compatible with the applicable standards and urge that the project be modified and the application resubmitted.
- Issue a negative declaration and deny the application. The negative declaration would identify the possible impacts from the action but note that they do not rise to the level of requiring the preparation of an EIS. The denial would then be based on the applications failure to meet the regulatory standards for permit issuance.
The third option only works when there are clear regulatory standards in place and the denial is based on the failure of the application to meet those standards. If the standards are general in nature, and the denial is based on environmental reasons, then it is likely that this approach would be vulnerable to legal challenge.
11. Are there any situations where an agency can act without SEQR compliance?
Yes. Legislative bodies have the authority to refuse to entertain (not to consider) certain applications like petitions to change the zoning classification of a parcel. If the legislative body chooses not to entertain the petition they do not have to complete SEQR in making that decision. This decision has been placed on the Type II list (see 6 NYCRR Section 617.5).
For example, if an agency must make a legislative decision, such as rezoning or extending a water system, and the agency determines that the action will not be considered at that particular time, SEQR need not be applied to that legislative decision process. However, if at a later date, the legislative body does take up consideration of any aspect of the proposal for full or conditional approval, the action would then be subject to SEQR.
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