Declaratory Ruling 08-02: Buffalo and Fort Erie Public Bridge Authority (Peace Bridge Expansion Project)
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Petition of
Buffalo And Fort Erie Public Bridge Authority
This matter has been referred to the New York State Department of Environmental Conservation (Department) Office of General Counsel for the issuance of a declaratory ruling pursuant to Section 204 of the State Administrative Procedure Act and Part 619 of the Official Compilation of Codes, Rules, and Regulations of the state of New York. In a Petition dated October 11, 2001, Petitioner, Buffalo and Fort Erie Peace Bridge Authority (Bridge Authority), seeks a declaratory ruling as to whether the State environmental Quality Review Act (SEQRA) requires an involved State or local agency (hereinafter "state agency") to assume the status of lead agency in a project that is subject to a federal Environmental review pursuant to the National Environmental Policy act (NEPA), and if not required, whether said state agency is responsible for complying with SEQRA's procedural Requirements.
Statement of Facts
For the sole purpose of this particular ruling, the facts as set forth in the petition are assumed to be correct. The Peace Bridge was constructed in 1927 and was owned and operated by the Buffalo and Fort Erie Public Bridge Company. In 1933, due to its role as the principal road connector between Western New York and Canada, the State of New York, in conjunction with Canada, created the Buffalo and Fort Erie Public Bridge Authority ("Bridge Authority"). The Authority was granted the powers to initially purchase, and subsequently maintain and operate the Buffalo and fort Erie Public Bridge Company.
During the early 1990's a number of projects were proposed by the Bridge Authority in response to the increase in traffic over the bridge and the congestion that subsequently resulted. In 1990 the Bridge Authority proposed the Plaza Congestion Relief Project designed to upgrade the U.S. Plaza. This project received funding from the Intermodal Surface Transportation Efficiency Act ("ISTEA") and was administered by the Federal Highways administration ("FHWA") and its delegated agent, the New York State Department of Transportation ("NYSDOT"). This federal funding triggered an environmental review pursuant to NEPA, and FHWA, through its designated agent NYSDOT, acted as lead agency.
In 1993 the Bridge Authority proposed the Bridge Capacity project to address the limited capacity of the existing Peace Bridge. The Department issued a Water Quality Certification pursuant to §401 of the Federal Clean Water Act, and the U.S. Coast guard acted as lead agency for purposes of the NEPA review. In 2000 the New York State Supreme Court, Erie County, annulled the negative declaration and the Department's Water Quality certification stating that it was improper to segment the SEQRa review of both projects. This resulted in the creation of a new all Encompassing project entitled the Expansion Project. This current undertaking incorporates the 1990 plaza congestion relief project and the 1993 bridge capacity project.
Whether SEQRA requires that a state agency involved in the environmental review of a project subject to both NEPA and SEQRA, and for which a federal Draft and Final EIS will be prepared, assume the status of SEQRA lead agency?
If designation of a SEQRA lead agency is not required under these circumstances, who, if anyone, is responsible for complying with SEQRA procedural requirements?
Summary of Ruling
SEQRA does not require the designation of a lead agency when there is a federal environmental review conducted in accordance with NEPA and a federal Environmental Impact Statement ("EIS") is being prepared. The state agencies involved in the process of the environmental review contribute to the federal EIS and ensure that all relevant SEQRA requirements will be covered Within the federal review document. The responsibility to follow and comply with the processes mandated by the SEQRA regulations falls upon each state agency involved in the environmental review of an action, and this responsibility continues whether a SEQRa lead agency is designated or is not designated.
Section 204 of the State Administrative Procedure Act ("SAPA") states that an "agency may issue a declaratory ruling with respect to (i) the applicability to any person, property or state of facts of any rule or statute enforceable by it." SAPA §204.1. SAPA dictates that the Department can only render declaratory rulings on those issues in which they can enforce as regulator through an administrative or judicial enforcement actions. See DEC Declaratory Ruling #08-01. The New York State legislature expressly gave to the Commissioner of the New York State Department of Environmental Conservation ("Commissioner") the regulating authority to resolve lead agency disputes. ECL §8-0111(6) .
Does SEQRA require that one of the state agencies involved in the environmental review of a project subject to both NEPA and sEQRA, and for which a federal Draft and Final EIS will be prepared, assume the status of SEQRA lead agency? (Petition at 5).
The concept of identifying a state agency as a SEQRA lead agency for an action subject to both a NEPA and a SEQRA review is not addressed by SEQRA's enabling statute or its implementing regulations. See generally, ECL Article 8; 6 NYCRR Part 617. Subsection 6 of ECL §8-0111, a provision that specifically deals with the issue of establishing a lead agency, is silent as to the determination of a SEQRA lead agency for review of an action subject to NEPA. Absent such language, SEQRA cannot be viewed to compel a state agency to assume the status of lead agency for the environmental review of a project subject to both NEPA and SEQRA. See McKinney's Cons Laws of NY, Book 1, Statutes §§ 73, 74; see also, Pajak v. Pajak, 56 NY2d 394, 396-397 (1982); russo v. Valentine, 294 NY 338, 342 (1945).
Generally, when a state agency participates in the review of an action that is subject to NEPA, the state agency shall coordinate its review to comply with federal requirements in a "single environmental reporting procedure." ECL §8-0111(1). This approach enables state and federal agencies to coordinate their Review utilizing joint documents and processes. In fact, a "[f]ederally prepared EIS (see, 42 USC §4321 et. seq. [National Environmental Policy]), may be used to satisfy the purposes of state law (see, ECL §8-0111) Bronfman v. Flacke, 127 AD2d 833 (2d Dept, 1987), and even where a state agency does not participate in the conduct of the NEPA review, a "duly prepared" federal EIS shall suffice for the purposes of satisfying both NEPA and SEQRA. ECL §8-0111(2). Indeed, to impose two distinct environmental impact statement processes "would amount to an Environmental version of cruel and unusual punishment." weinberg, Practice Commentaries (McKinney's Cons Laws of NY, book 17½ , ECL §8-0111 at 218).
In practice, the interplay between NEPA and SEQRA for actions that may be subject to review under both statutes occurs as follows. In their initial review of actions, state agencies "must", inter alia, determine whether the proposed action is subject to SEQRA, whether the action involves a federal agency, and whether the action may involve one or more agencies. 6 NYCRR §617.6(a)(1)(i), (ii) and (iii). If the action involves a federal agency, the state agency is then directed to follow section §617.15 , which "expressly governs" the next steps the state agency is to follow. Weinberg et al., Environmental Impact Review in New York, vol. 2, §8.04 at 8-14.1 (1990). Section 617.15 provides, in pertinent part, that "[w]hen a draft and final EIS for an action has been duly prepared under the national Environmental Policy Act of 1969, an agency has no obligation to prepare an additional EIS under this Part, provided that the federal EIS is sufficient to make findings under section 617.11 of this Part." Moreover, section 617.15 does not impose A requirement to determine a state lead agency under a NEPA review, but rather prescribes that state agencies shall not be responsible for conducting their own SEQRA review when there are federaL Agencies involved and a federal EIS will be prepared.
This position is plainly consistent with federal regulations implementing NEPA. Federal agencies shall "cooperate with state and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements ...," and such cooperation shall include, inter alia, "joint environmental assessments." 40 CFR §1506.2. This collaboration includes the determination of lead agency where "Federal, State, or local agencies, including at least one federal agency, may act as joint lead agencies ... ." 40 CFR §1501.5 (emphasis added). Thus, the federal regulations do not provide for a state agency to act as lead agency under NEPA review without having at least one federal agency to act as joint lead agency.
If designation of a SEQRA lead agency is not required under these circumstances, who, if anyone, is responsible for complying with SEQRA procedural Requirements? (Petition at 5)
Where, as here, a federal EIS is being prepared in accordance with NEPA, there is no obligation for a state agency to duplicate procedures and work "provided that the federal EIS is sufficient to make findings under section 617.11 of this part." 6 NYCRR §617.15(a.). In such cases, the state Agency is an "involved agency" and may defer to the NEPA Process in the conduct of an environmental review . 1 ECL §8-0111(1). However, each involved state agency must comply with the SEQRA requirement to make findings based on the final federal EIS. See 6 NYCRR §617.15(a) ("no involved agency may undertake, fund or approve the action until the federal final EIS has been completed and the involved agency has made the findings prescribed by section 617.11 of this Part.") In fact, the involved state agency must certify that the SEQRA regulations have been complied with pursuant to section 617.11(d)(4).
The SEQRA regulations do not impose a requirement to designate A state lead agency for an action subject to a NEPA review, and this position is consistent with federal regulations that do not allow for a state agency to act as the sole lead agency under a NEPA review. Further, each involved state agency under a NEPA review is responsible for ensuring compliance with the procedural and relevant substantive requirements of SEQRA when it certifies its findings pursuant to 6 NYCRR §617.11(d)(4).
Dated: June 10, 2002
Albany, New York
James H. Ferreira
Deputy Commissioner and General Counsel