SEQR Handbook: Segmentation

1. What is Segmentation?

In 6 NYCRR Part 617.2(ag), segmentation is defined as the division of the environmental review of an action so that various activities or stages are addressed as though they were independent, unrelated activities needing individual determinations of significance. Except in special circumstances, considering only a part, or segment of an overall action, is contrary to the intent of SEQR.

There are two types of situations where segmentation can occur. One is where a project sponsor attempts to avoid an EIS by splitting a project into two or more smaller projects. The second is where activities that may be occurring at different times or places are exclude from the scope of an EIS. By excluding subsequent phases or associated project components from the EIS the project may be more acceptable to the reviewing agencies and the public.

2. How does an agency address uncertainty about later phases?

All known phases of a project should be considered in the determination of significance. If later phases are uncertain as to design or timing, their environmental significance should be examined as part of the whole action by considering the potential effects of total build-out. If, after completion of the review, it can be determined that the subsequent phases will cause no significant adverse impacts or that the impacts can be mitigated, initial phases can be approved and no further analysis under SEQR will be necessary. Later, if substantial changes to the project are proposed, such changes should be evaluated and a new determination of significance made. If an EIS was produced for earlier phases, a supplemental impact statement or revised SEQR findings may be needed.

3. What is the basic test for segmentation?

When trying to determine if segmentation is occurring agencies should consider the following factors:

Purpose: Is there a common purpose or goal for each segment?
Time: Is there a common reason for each segment being completed at or about the same time?
Location: Is there a common geographic location involved?
Impacts: Do any of the activities being considered for segmentation (while not necessarily significant by themselves) share a common impact that may, if the activities are reviewed as one project, result in a potentially significant adverse impact?
Ownership: Are the different segments under the same ownership or control?
Planning: Is a given segment a component of an identifiable overall plan? Will the initial phase direct the development of subsequent phases or will it preclude or limit the consideration of alternatives in subsequent phases?
Utility: Can any of the interrelated phases of various projects be considered functionally dependent on each other?
Inducement: Does the approval of one phase or segment commit the agency to approve other phases?

4. Is segmented review ever acceptable under SEQR?

There are only limited circumstances where a segmented review is justified. However, such justification must be clearly noted in the determination of significance and in any subsequent EIS by providing supporting reasons and demonstrating that such review will be no less protective of the environment.

For example, the following circumstances, when considered together, may warrant segmentation when a project has several phases:

information on future project phase(s) is too speculative;
future phase(s) may not occur;
future phase(s) are functionally independent of current phase(s).

5. If projects are linked but will have separate sources of funding can they be reviewed separately?

No. In highway construction, low income housing and economic development projects, it is common to have a mix of funding sources. If the projects are part of an overall action then they should be examined in a single environmental review.

6. Who is responsible for making the decision on proceeding with a segmented review?

The lead agency is responsible for making this decision. The project sponsor and other involved agencies may supply information to assist the lead agency but ultimately it is the responsibility of the lead agency to make an independent assessment of the actual scope of the project and to document the decision to undertake a segmented review.

7. Why is the claim of segmentation frequently raised?

In promoting a project, sponsors frequently make claims regarding subsequent phases or related development that may follow the initial project. The sponsor's goal may be to convince the reviewing agency that their project will serve as an engine for further economic development in the town or that it will be only the first of several proposed developments that the sponsor will be constructing in the town. However, when it comes time for the project to be formally submitted to the reviewing agencies for approval, the project may be greatly reduced in scope from the initial public disclosures. The general public, especially project opponents quickly pick up on this issue if the lead agency chooses to review the reduced proposal. The public may also question plans for the expansion of the initial proposal even though such an expansion has never been discussed. This frequently occurs when a proposal depicts the development of a 60 acre site and it is discovered that the applicant owns the adjoining 300 acres. In such cases, it is not uncommon or unreasonable to question the plans for the adjoining acreage.

8. How does an agency determine if the proposed project is part of a larger plan?

Sometimes the project sponsor has a definite plan for future development and other times the future projects are merely wishful thinking. It is up to the lead agency to determine if the project now before it is the "whole action" or merely a part or segment of the action that should be reviewed. If there is evidence of a plan then there is a strong presumption that the larger project is the "whole action" that should be the subject of the environmental review. Some examples where the larger project is the "whole action"are: a proposed industrial park of which the instant project is just the initial tenant, a commercial strip mall development that allows for future expansion, a residential subdivision that provides for internal road connections to additional lands under the control of the project sponsor or a mining project that will prepare the site for a subsequent development proposal.

9. Examples of projects where segmentation was determined not to be justified by the courts.

Village of Westbury v. Department of Transportation, 75 NY 2d 62, 550 N.Y.S.2d 607 (1989) - DOT issued a negative declaration for the reconstruction of a highway interchange. The Court of Appeals found that the interchange reconstruction was closely linked to the widening of the Northern State Parkway which was also in the planning process and ruled that the projects must be considered as one action for the purposes of conducting an environmental review since they were complementary components of a plan to alleviate traffic flow problems.

Kasrasz v. Wallace, 134 Misc. 2d. 1052, 1055, 513 N.Y.S.2d 950 (4th Dept. 1987) - The town board considered the construction of a single building on a large lot separately from other construction planned by the developer for the same site. The court found that to allow piecemeal development of the site violated the anti-segmentation rule. This situation is often found in the development of industrial parks where the instant case may involve only one tenant but it is clearly the developer's intent over time to develop the entire parcel.

Citizens Concerned for the Harlem Valley Environment v. Town Board of the Town of Amenia, 264 A.D.2d 394, 694 N.Y.S.2d 108 (2nd Dept. 1999) - The town board issued a negative declaration for the rezoning of a parcel of land for mining and the development of a light industrial park. The negative declaration did not consider the environmental impacts of the mining. The court found that the rezoning was an integral part of the mining proposal and held that the effects of the mining had to be considered at the same time as the environmental review of the rezoning for the industrial park.

Sutton v. Board of Trustees, 122 A.D.2d 506, 505 N.Y.S.2d 263 (3rd Dept. 1986) - Village board approved the rezoning of hospital property to allow the construction of two phases of additional facilities. The court overturned the negative declaration because the board considered only the impacts from the first phase of the project.

10. Examples of projects where segmentation was determined to be justified by the courts.

Stewart Park & Reserve Coalition v. New York State Department of Transportation, 157 A.D. 2d. 1, 555 N.Y.S.2d 481 (3rd Dept. 1990) affirmed 77 N.Y.2d 970 - A separate review of the development of commercial air service at Stewart Airport from the development of plans for the surrounding buffer area was determined by the court to be permissible based on the conclusion that the plans were not functionally dependent.

Concerned Citizens for the Environment v. Zagata, 243 A.D.2d 20, 672 N.Y.Y.2d 956 (3rd Dept. 1998) -The court found that DEC had justification to conduct a segmented review for a solid waste transfer station. The company submitted an application and a DEIS to DEC for a permit to construct and operate an integrated solid waste management facility consisting of an incinerator, a materials recovery facility and a solid waste transfer station. Later the company submitted a new application seeking a permit for the construction and operation of only the transfer station. The record was found to contain ample support for the position that the solid waste transfer station would have independent utility from the larger project.

Schodack Concerned Citizens v. Town Bd. of Schodack, 142 Misc. 2d. 590, 537 N.Y.S.2d 1015, 1020 (Sup. Ct. Rensselaer Co.), aff'd, 148 A.D.2d 130, 544 N.Y.S.2d 49 (3rd Dept. 1989) - An EIS was prepared for the construction of a proposed supermarket warehouse distribution facility. The facility was designed to serve 23 retail supermarkets that were part of the long range plan of the sponsor. Project opponents felt that the lead agency had improperly segmented the review because it failed to consider the environmental impacts from the construction of the 23 supermarkets. The court ruled that to require the EIS to consider the environmental impacts from each of these 23 individual stores was beyond the scope of the review for the distribution center and that each of the sites would be subjected to its own environmental review by the agency required to approve the location.

11. What are some other examples of segmentation?

A failed attempt to segment a review - A mining company that was attempting to expand its operation sold an adjacent parcel to a corporation for the development of an industrial park. DEC, which was the lead agency for the review of the mining expansion, objected when the local municipality attempted to assume lead agency for the industrial park application. The dispute was brought before the Commissioner of DEC for designation of a lead agency. It was determined that in order to prepare the site for the development, 1 million cubic yards of rock would have to be removed. It was likely that this rock would be sold to the mining operator for processing and sale. Since mining was a significant part of the development of the industrial park, the Commissioner determined that DEC should also serve as lead agency for the review of the industrial park. Subsequent to this decision, the project sponsor dropped its plans for the industrial park and the site returned to the control of the mining company.

A properly segmented review - a mine was proposed to be located adjacent to a significant fishery resource of regional importance. A review revealed that part of the site could be mined without impacting the fishery but that later phases of mining had the potential to impact the resource. It was decided to allow the project to be segmented with an EIS used to evaluate the initial phase of mining. However, detailed hydrogeological studies were required to determine the potential for impact to the fishery resource from the later phases of mining. In this way, the initial phase was allowed to occur after the completion of the EIS but the fishery resource was protected until the necessary studies could be conducted and analyzed in a subsequent environmental review.

A properly segmented review - DOT planned to restripe and reconfigure an existing intersection to create a left hand turning lane to provide an interim solution to a traffic flow problem. No additional paved surfaces were to be constructed. This same intersection was part of a major traffic improvement project intended to reduce traffic congestion in the general area. This was not segmentation because the interim project represented a distinct, stand alone project whose viability or effectiveness was not dependent on the actual completion of the overall traffic improvement project. In fact, the interim project was inconsistent with the larger plan since this intersection was scheduled to be totally rebuilt. Even though both projects could be viewed as serving the same objective, addressing traffic congestion and safety issues, they really were separate projects.

A properly segmented review - A municipality proposed to replace its existing water filtration plant. The original structure which was slated for demolition was determined to be eligible for listing on the State and National Register of Historic Places. A structural analysis determined that the structure was too deteriorated to be rehabilitated. The original plan called for demolition of the structure after construction of a new plant on an adjacent site. The decision was made by the lead agency to segment the review and issue a negative declaration to allow the construction of the new water filtration plant. The municipality entered into a memorandum of understanding with the Office of Parks, Recreation and Historic Preservation to "mothball" the historic part of the existing facility while engineering and use studies were conducted to determine if it was feasible to preserve and reuse the historic plant.

A properly segmented review - Several streets were demapped by a municipal planning board to allow for the construction of parking fields to serve a local educational institution. There was concern that this project would be the precursor to the construction of a multi-story parking garage on the same site. The board decided that the plans for a garage were too speculative and need not be considered at the same time and issued a negative declaration for the construction of the parking fields.

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