1. 1 SEQR & Environmental Health: Types of Actions Justin Pfeiffer, Esq. Senior Attorney, NYSDOH March 23, 2011

2. 2 Standard Disclaimer The contents of this presentation should not be construed to represent any government agency determination or policy. These materials are for instructional use only and are not intended as a substitute for professional legal advice.

3. 3 Outline Sources of SEQR Law & Guidance Type I Actions Type II Actions Unlisted Actions “Discretionary Actions” “Non-discretionary Actions”

4. 4 SEQR Laws and Guidance Environmental Conservation Law (ECL) article 8 6 NYCRR part 617 –Applies to all state and local agencies, all the time 10 NYCRR part 97 –Legally applies only to NYSDOH, but a “persuasive authority” in determining what applies to county DOHs –More health-specific that 6 NYCRR part 617 2010 SEQR Handbook

5. 5 3 Types of Actions Type I Actions –A “Discretionary Action” may be Type I Unlisted Actions –A “Discretionary Action” may be Unlisted Type II Actions –Includes “Non-discretionary actions”

6. 6 Which Types of Actions Does SEQR Apply To? SEQR Applies to: –Type I Actions –Unlisted Actions –“Discretionary Actions” SEQR Does Not Apply to: –Type II Actions –“Non-discretionary Actions”

7. 7 What is a Type I Action? Any action “likely to require preparation of an EIS” This includes initial approval of most facilities or activities that are regulated by State Sanitary Code

8. 8 What is a Type I Action? (cont.) Initial plan approval of: –Public water systems (Community and Non-) –Realty Subdivisions (!) –Mobile Home Parks –Public Swimming Pools –Public Bathing Beaches –Children’s Camps –Hotels and Motels –Mass Gatherings –Travel Vehicle Parks and Campsites

9. 9 What is a Type I Action? (cont.) Approval of Insect Control Programs Action within or adjacent to a site on, or proposed for listing on, the National Register of Historic Places, or listed on the State Register of Historic Places Source: 6 NYCRR 617.4, 10 NYCRR 97.14

10. 10 What else might be a Type I Action? Anything that can be “reasonably expected” to create: –Substantial, adverse change in water, soil, or air quality or noise level –Substantial, adverse damage to vegetation or local or migratory animals –Congregation of people for more than a few days –Conflict with the community’s officially adopted plans or goals

11. 11 What else might be a Type I Action? (cont.) Anything that can be “reasonably expected” to create: –Impairment of an area’s historic character –Major change in energy use –Major change in use of resources –Hazard to human health Use judgment! Source: 10 NYRCRR 97.13

12. 12 What is a Type II Action? In general, issuance of any permit, certification or registration that does not relate to construction –Possible exceptions: See Type I Guidance License or permit renewals where there is no material change in permit conditions Replacement of a facility in kind

13. 13 What is a Type II Action? (cont.) Construction of minor structures appurtenant to existing facilities Minor, temporary uses of land having temporary or negligible effects on the environment Source: 6 NYCRR 617.5, 10 NYCRR 97.14

14. 14 What is an Unlisted Action? Anything that is not Type I or Type II by DEC Or, if state agency action, anything not Type I or Type II in agency regulation Source: 6 NYCRR 617.2, 10 NYCRR 97.2

15. 15 What is a “Discretionary Action”? “Discretionary” refers to a decision requiring the agency’s judgment, expertise, and decision-making Can be a Type I or Unlisted Action Ex: The agency has “discretion” over whether to grant a permit

16. 16 So, What is a “Non-discretionary Action”? This a kind of Type II Action The applicant has “checked all the boxes” Agency’s decision does not require judgment, expertise, or decision-making Therefore, the agency must take a certain action; e.g., issue a permit

17. 17 Other Issues (For Another Day) Who is lead agency? In general: –The agency taking action –If multiple agencies, the agencies agree on lead –If no agreement, DEC decides When is a full EAF required for Unlisted Actions? What is the EIS process? How does notice and comment work?

18. 18 Reminders This is a general overview of just one part of SEQR Exceptions and grey areas exist If you have questions, seek guidance from DOH or DEC

19. 19 Contact Information Justin Pfeiffer, Esq. NYS Department of Health (518) 473-1403 jdp10@health.state.ny.us NYSDEC, Division of Environmental Permits (518) 402-9167 depprmt@gw.dec.state.ny.us

20. 20 Discussion