Part 97 - Regulations Implementing State Environmental Quality Review

Effective Date: 
Tuesday, January 7, 1964
Doc Status: 
Complete
Statutory Authority: 
Environmental Conservation Law, Section 8-0113

Section 97.1 - Authority, purpose and policy

Section 97.1 Authority, purpose and policy.

(a) The State Environmental Quality Review Act ("SEQR") of 1975 (article 8, Environmental Conservation Law), provides that all agencies shall prepare, or cause to be prepared by contract or otherwise an environmental impact statement ("EIS") on any action they propose or approve which may have a significant effect on the environment. Subdivisions (1) and (2) of section 8-0113 of the Environmental Conservation Law require that, after consultation with other agencies subject to the provisions of said article 8, including State agencies and representatives of local governments, and after conducting public hearings and review of any other comments submitted, the Commissioner of Environmental Conservation shall adopt rules and regulations of statewide applicability that implement the provisions of SEQR.

(b) Rules and regulations of statewide applicability were adopted on March 19, 1976 by the Commissioner of Environmental Conservation and filed with the Secretary of State on March 22, 1976 as Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York.

(c) This Part is adopted pursuant to subdivision (3) of section 8-0113 of the Environmental Conservation Law which requires agencies to adopt and publish such additional procedures as may be necessary for the implementation by them of SEQR, consistent with the statewide rules and regulations (6 NYCRR Part 617) adopted by the Commissioner of Environmental Conservation pursuant to subdivision (1) of section 8-0113 of the Environmental Conservation Law.
 

Doc Status: 
Complete

Section 97.2 - Definitions

97.2 Definitions. As used in this Part, unless the context otherwise requires:

(a) Commissioner means the Commissioner of the New York State Department of Health.

(b) Department means the New York State Department of Health.

(c) Region means that geographical area under the jurisdiction of the department's Albany, Buffalo, Rochester, Syracuse or New Rochelle regional or area health offices or its office for New York City health services.

(d) Applicant means any person making an application for approval or funding of a proposed action.

(e) Person means any agency, individual, corporation, governmental entity, partnership, association, trustee or other legal entity.

(f) State agency means any State department, agency, board, public benefit corporation, public authority or commission.

(g) Local agency means any local agency, board, district, commission or governing body, including any city, county and other political subdivision of the State.

(h) Agency means any State or local agency.

(i) Action means any project or activity directly undertaken by the department; or supported in whole or part through contracts, grants, subsidies, loans or other forms of funding assistance; or involving the issuance to a person or facility of a lease, permit, license, certificate approval or conditional approval or other entitlement for use or permission to act by the department; or any policy, regulation and procedure-making by the department. Actions are identified as type I, type II, exempt and unlisted actions.

(j) Exempt action means any one of the following:

(1) enforcement or criminal proceedings or the exercise of prosecutorial discretion in determining whether or not to institute such proceedings;

(2) ministerial actions;

(3) maintenance or repair involving no substantial change in an existing structure or facility;

(4) actions deemed by the commissioner to be immediately necessary on a limited emergency basis for the protection or preservation of life, health, property or natural resources;

(5) actions of the Legislature of the State of New York or of any court;

(6) actions subject to the jurisdiction of local governments pursuant to section 808 of the Executive Law or subject to the jurisdiction of the Adirondack Park Agency pursuant to section 809 of the Executive Law; and

(7) actions undertaken, funded or approved by the department prior to the effective date(s) specified in article 8 of the Environmental Conservation Law.

(k) Ministerial action means an action performed upon a given state of facts in a prescribed manner imposed by law, code, rule or regulation without the exercise of any judgment or discretion as to the propriety of the action, although such law, code, rule or regulation may require, to a limited degree, a construction of its language or intent.

(l) Environment means physical conditions, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution or growth and existing community or neighborhood character.

(m) Environmental assessment form (EAF) means a form, describing a proposed action, its location, its purposes and its potential impacts on the environment, used to assist the department in determining the environmental significance or nonsignificance of an action. The term short form EAF means a simplified EAF used to determine whether sufficient information has been presented on which to determine the environmental significance or nonsignificance of an unlisted action.

(n) Complete application means an application, including an environmental assessment which, in the judgment of the department, contains sufficient information on which to make a decision whether or not to proceed, approve or tentatively approve a proposed action. In the case of an action involving an applicant, it shall include the filing of all applications and documents associated with the proposed action that are required pursuant to any statute, rule or regulation unless in the judgment of the department and relevant regulatory agencies such filing is not feasible or appropriate given the nature of the proposed action or that the failure to file all such applications or documents at the same time will not preclude adequate review by the department.

(o) Application date means that date on which the department acknowledges the receipt of a complete application.

(p) Notice of determination means a formal notification issued by the department, informing the public and other interested parties of a decision affecting a proposed action. An initial notice of determination will consist of a negative declaration or a requirement to prepare an EIS. A final notice of determination will indicate the final department decision concerning a proposed action.

(q) Negative declaration means a written statement prepared by the department which announces that the department has determined that an action will not have a significant effect on the environment. (r) Conditional approval means a general and preliminary expression of department assent that a project proposed by an applicant is feasible in light of environmental and statutory constraints. A conditional approval does not automatically assure the issuance of necessary permits and approvals for a project which is subject to final department determination based on more complete engineering and other planning details provided by the applicant at a later time.

(s) Environmental impact statement (EIS) means a written report prepared by the department or submitted to the department by an applicant which identifies and analyzes in detail the environmental impacts of the proposed action and feasible alternatives. The form and content follows section 97.12 of this Part and 6 NYCRR 617.14. An environmental impact statement may be either a "draft" or "final".

(t) Notice of completion means a formal notification, issued by the department, informing the public and other interested parties that either the draft environmental impact statement or a final environmental impact statement has been prepared and is now available for public and department review.

(u) Notice of hearing means a formal notification, issued by the department, that establishes the date, time and location of a public hearing called to review a proposed action of the department or an applicant. This notice shall be published in a newspaper selected by the department and/or the Environmental Notice Bulletin at least 14 calendar days before the hearing date.

(v) Type I action means an action such as listed in either 6 NYCRR 617.12 or in section 97.14 of this Part likely to require the preparation of an environmental impact statement in order to adequately review the possible environmental consequences of the action.

(w) Type II action means an action such as listed in either 6 NYCRR 617.13 or in section 97.14 of this Part determined not to have a significant adverse impact on the environment.

(x) Unlisted action means an action not excluded or exempt, which is not listed as a type I or type II action in this Part.

(y) Residential means a realty subdivision or any facility used for permanent or seasonable habitation, including but not limited to apartments, mobile home parks, and campsites offering any utility hookups for recreational vehicles. It shall not include such facilities as hotels, hospitals, nursing homes, dormitories or prisons.

(z) Coastal area means the State's coastal waters and the adjacent shorelands, as defined in article 42 of the Executive Law, the specific boundaries of which are shown on the coastal area map on file in the Office of the Secretary of State, as required by section 914(2) of the Executive Law.

(aa) Funding means any financial support given by an agency, including contracts, grants, subsidies, loans or other forms of direct or indirect financial assistance, in connection with a proposed action.

(bb) Involved agency means an agency that has jurisdiction by law to fund, approve or directly undertake a given action.

(cc) Lead agency means an agency principally responsible for carrying out, funding or approving an action, and therefore responsible for determining whether an environmental impact statement is required in connection with an action, and for the preparation and filing of the statement if one is required.
 

Doc Status: 
Complete

Section 97.3 - Applicability

97.3 Applicability.

The provisions of this Part shall apply and take effect as prescribed in article 8 of the Environmental Conservation Law.
 

Doc Status: 
Complete

Section 97.4 - General rule

97.4 General rule.

A final notice of determination will not be issued until there has been full compliance with the provisions of 6 NYCRR Part 617 and this Part, including the payment to the department of all necessary fees and costs. For the purposes of this Part, in certain instances, based on the applicant's preliminary environmental documentation supplied to the department, a tentative approval of a proposed action involving an applicant may be granted.
 

Doc Status: 
Complete

Section 97.5 - Responsibilities of applicants

97.5 Responsibilities of applicants,

(a) Applicants to the department for approval of proposed actions shall include in their application documents, an environmental assessment form (EAF) prepared in a manner prescribed by the department which describes and analyzes the environmental impacts of the proposed action, documentation showing the application pertains to a type II action which has not been subject to a final EIS, or other documentation showing the application pertains to a project not subject to this Part. The EAF or other documentation shall contain sufficient information for the department to determine if the action may have a significant effect on the environment. An initial notice of determination will be prepared by the department citing the results of its review. If, in the judgment of the department, the information provided in the EAF or other documentation is insufficient to complete an adequate review under the State Environmental Quality Review Act (SEQR), the applicant will be required to furnish additional information on the proposed action as it is deemed necessary for compliance with this Part. A draft EIS may be submitted in lieu of an EAF.

(b) Each application to the department shall include:

(1) an identification of those other agencies, including Federal agencies, which to the best knowledge of the applicant, have jurisdiction by law over the action or any portion of it;

(2) documentation that the applicant has made his proposal known to those agencies;and

(3) copies of preliminary approval and/or review.

(c) Where appropriate, an applicant may append to the EAF a concise statement of reasons why, in the judgment of the applicant, the proposed action is one which will not require the preparation of an EIS under SEQR.

(d) Applicants shall consider the environmental impacts of proposed actions and alternatives at the earliest possible point in their planning processes and shall develop, wherever possible, measures to mitigate or avoid adverse environmental impacts.

(e) No application for funding or other department approval of an action shall be complete until the applicant provides the documentation required by this section and such other documentation as may be required by any statute or regulation pertaining to consideration of that action.
 

Doc Status: 
Complete

Section 97.6 - Initial review of actions

97.6 Initial review of actions. Upon receipt of an application for a funding or approval action, the department shall:

(a) determine whether the action is subject to SEQR. If the action is an exempt, an excluded, or a type II action, the agency shall have no further responsibilities under this Part;

(b) determine whether the action involves a Federal agency. If the action involves a Federal agency, the provisions of section 97.15 of this Part shall apply;

(c) determine whether the action involves one or more other agencies.

(1) if the action is a type I action, the provisions of section 97.7 of this Part shall govern the designation of lead agency;

(2) if the action is an unlisted action, the provisions of section 97.8 of this Part shall govern the designation of lead agency;

(d) determine whether the action is located in the coastal area. If the action is either a type I action or an unlisted action and is in the coastal area, the provisions of 19 NYCRR Part 600 shall apply.
 

Doc Status: 
Complete

Section 97.7 - Designation of lead agency and determination of significance for type I actions

97.7 Designation of lead agency and determination of significance for type I actions.

(a) The provisions of this section shall govern the designation of lead agency and determination of significance for all type I actions.

(b) An EAF shall be completed for every type I action which is directly undertaken, funded or approved by the department unless an acceptable draft EIS has already been or will be prepared on the action. No EAF shall be considered complete unless it contains a list prepared by the applicant of all other involved agencies which the applicant has been able to ascertain, exercising all due diligence.

(c) Actions involving only the department. When the department proposes to directly undertake an action which does not require funding or approval from any other agency, or receives an application to fund or approve an action over which no other agencies have approval authority, it shall be the lead agency, and shall determine the significance of the action in accordance with sections 97.13 and 97.14 of this Part within the following time periods:

(1) If the department is directly undertaking the action, it shall determine the significance of the action as early as possible in the design or formulation of the action.

(2) If the department has received an application for funding or approval of the action, it shall determine the significance of the action within 15 calendar days of its receipt of the complete application, an EAF, and any additional information it deems necessary to make that determination.

(d) Actions involving the department and other agencies. (1) When the department proposes to directly undertake an action which requires funding or approval from one or more other agencies, or receives an application for funding or approval which other agencies have approval authority over, it shall, as soon as possible, mail the completed EAF and a copy of any application it has received to all involved agencies, notifying them that within 30 calendar days of the date the EAF was mailed to them, a lead agency must be designated by agreement among them. The following criteria, in order of importance, shall be used to designate lead agency:

(i) whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance, i. e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved shall be lead agency;

(ii) which agency has the broadest governmental powers for investigation into the proposed action; and

(iii) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

(2) The department, if it is a lead agency, shall determine the significance of the action in accordance with sections 97.13 and 97.14 of this Part within 15 days of its designation as lead agency, or within 15 days of its receipt of any information it may need to make the determination of significance, whichever occurs later, and shall immediately notify all other involved agencies of its determination.

(e) Actions for which lead agency cannot be designated by agreement. If, within the 30-day period allotted for designation of a lead agency, the department and other agencies are unable to agree upon which agency shall be the lead agency, then the lead agency shall be determined as provided in 6 NYCRR 617.6.
 

Doc Status: 
Complete

Section 97.8 - Designation of lead agency and determination of significance for unlisted actions

97.8 Designation of lead agency and determination of significance for unlisted actions.

(a) The provisions of this section shall govern the designation of lead agency and determination of significance for all unlisted actions. These provisions are designed to simplify the SEQR procedure that applies to unlisted actions.

(1) When the department is reviewing an unlisted action, coordinated review is required only when it determines that an EIS will be prepared. If the department determines that the unlisted action will not have a significant effect on the environment, coordinated review and notification is strictly optional. However, if the department or applicant wants to finalize, in the shortest possible time, lead agency status and the agency's determination of nonsignificance, the department or applicant may follow the notification procedures specified in subdivision (d) of this section. Unless and until written notification of lead agency status and determination of significance has been given to all other involved agencies, each subsequent involved agency shall make its own determination of significance and may require an EIS.

(2) When the optional coordinated review is not employed for unlisted actions and the lead agency status is not confirmed, the department's determination of nonsignificance can be superseded at any time, until one of the following occurs:

(i) all involved agencies receive written notification pursuant to subdivision (d) of this section and fail to respond to the notice within the prescribed time period; or

(ii) all involved agencies have issued all final decisions on the action.

(b) An EAF shall be submitted when requested by the department but is not required in connection with every unlisted action. An applicant may, instead, submit a short form EAF. If, however, after considering a completed short form EAF, the department has insufficient information on which to base its determination of the environmental significance of an action, the applicant shall submit a standard form EAF.

(c) As early as possible in the formulation of plans for an unlisted action to be directly undertaken, or within 15 days of receipt of a complete application for funding or approval of an unlisted action, the department shall make a initial determination of the significance of the action in accordance with sections 97.13 and 97.14 of this Part.

(d) The department or applicant, if it chooses to coordinate the review of involved agencies and promptly designate a lead agency and confirm initial determinations of significance, may ascertain, exercising all due diligence, all other involved agencies and notify such agencies of the initial determination, supplying them with a copy of any EAF and any applications which have been prepared, and reasons supporting the initial determination.

(e) If, within 15 calendar days from the date of mailing notification described in subdivision (d) of this section, no involved agency submits a written objection to the department, the department shall be the lead agency and shall:

(1) follow the provisions of section 97.9 of this Part if it has determined an EIS is required; or

(2) maintain a file of its determination and supporting reasons available for public inspection, if it has determined an EIS is not required.

(f) If, within 15 calendar days from the date of notification described in subdivision (d) of this section, any involved agency submits a written objection to the department's determination to be the lead agency, it shall be the responsibility of all involved agencies to follow the procedures prescribed in subdivisions (d) and (e) of section 97.7 of this Part, and subdivisions (d) and (e) of section 617.6 of 6 NYCRR, for designation of lead agency. The department, if it is lead agency, shall then determine significance of the action and, if appropriate, proceed as described in section 97.9 of this Part.
 

Doc Status: 
Complete

Section 97.9 - Environmental impact statement procedures

97.9 Environmental impact statement procedures.

(a) The department shall, when it is lead agency for an action involving an applicant, and has determined that an EIS is required, immediately notify the applicant and all other involved agencies, in accordance with section 97.11 of this Part, in writing, that it is the lead agency and that an EIS is required. If the applicant does not exercise its option to prepare the draft EIS, the department shall prepare it, cause it to be prepared or terminate its review of the action.

(b) When the applicant prepares the draft EIS, the draft EIS shall be submitted to the department, if it is lead agency, which shall determine whether to accept it as satisfactory with respect to its scope, content and adequacy for purposes of this Part.

(c) The department, if it is lead agency, and has completed a draft EIS or has accepted a draft EIS prepared by an applicant, shall file a notice of completion of the draft EIS and a copy of the draft EIS in accordance with the requirements set forth in section 97.11 of this Part. The department shall specify a commenting period on the draft EIS, to be not less than 30 calendar days.

(d) When the department, if it is lead agency, has completed a draft EIS or when it has accepted a draft EIS prepared by an applicant, it will determine whether or not to conduct a public hearing concerning the action. In determining whether or not to hold a hearing, the department shall consider the degree of interest shown by other persons in the action, and the extent to which a public hearing can aid the agency decision making processes by providing a forum for, or an efficient mechanism for the collection of, public comment.

(1) If a hearing is to be held, the department shall file the notice thereof in accordance with section 97.11 of this Part. Such notice may be contained in the notice of completion of the draft EIS. The notice of hearing shall also be published, at least 14 calendar days in advance of the public hearing, in a newspaper of general circulation in the area of the potential impacts and effect of the action.

(2) The hearing shall commence not less than 15 calendar days nor more than 60 calendar days after the filing of the draft EIS pursuant to section 97.11 of this Part. When a SEQR hearing is to be held, it shall be incorporated into existing hearing procedures wherever practicable.

(e) Except as provided in paragraphs (1) and (2) of this subdivision, the department, if it is lead agency, shall prepare or cause to be prepared a final EIS, within 45 calendar days after the close of any hearing or within 60 calendar days after the filing of the draft EIS, whichever last occurs.

(1) If the proposed action has been withdrawn or if, on the basis of the draft EIS or hearing, the department, if it is lead agency, has determined that the action will not have a significant effect on the environment, no final EIS need be prepared. Notice of such determination shall be filed in accordance with section 97.11 of this Part.

(2) The last date for preparation of the final EIS may be extended:

(i) where it is determined that additional time is necessary to prepare the statement adequately;

(ii) where problems with the proposed action requiring material reconsideration or modification have been identified; or

(iii) for other good cause.

(f) Notice of completion of the final EIS and copies of the final EIS shall be filed in accordance with section 97.11 of this Part.
 

Doc Status: 
Complete

Section 97.10 - Decisionmaking and findings requirements

97.10 Decisionmaking and findings requirements.

(a) If the department is lead agency it shall, prior to any decision on an action which has been the subject of a final EIS, afford agencies and the public a reasonable time period (not less than 10 calendar days) in which to consider the final EIS.

(b) In the case of an action involving an applicant, the department's decision, if it is lead agency, on whether or not to approve or fund an action which has been the subject of a final EIS, shall be made within 30 calendar days after the filing of the final EIS and completion of other required reviews, except for good cause.

(c) The department shall not make a final decision to commence, engage in, fund or approve an action that has been subject of a final Federal or a final SEQR EIS until it has:

(1) given consideration to the final EIS;

(2) made a written finding that the requirements of this Part have been met; and

(i) consistent with social, economic and other essential considerations from among the reasonable alternatives thereto, the action to be carried out or approved is one which minimizes or avoids adverse environmental effects to the maximum extent practicable, including the effects disclosed in the relevant environmental impact statement; and

(ii) consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which were identified as practicable;

(3) prepared a written statement of facts and conclusions relied upon in the EIS, supporting its decision and indicating the social, economic and other factors and standards which formed the basis of its decision.

(d) Prior to making a decision not to approve an action, the department must prepare a written statement of the facts and conclusions relied on in making that decision, including reference to matters in the EIS or comments provided thereon.

(e) Health Department actions in the coastal area, shall be consistent with the applicable policies of Executive Law, article 42, as contained in 19 NYCRR 600.5, so as to achieve a balance between the protection of natural resources and the need to accommodate social and economic considerations as provided in such policies. When the State agency action in the coastal area is within the boundaries of an approved local waterfront revitalization program and the action is one identified by the Secretary of State pursuant to section 916(1)(a) of the Executive Law, the action shall be consistent to the maximum extent practicable with the applicable policies of such local waterfront revitalization program.
 

Doc Status: 
Complete

Section 97.11 - Notice and filing requirements

97.11 Notice and filing requirements.

(a) All notices, EIS's and other SEQR documents shall be prepared, filed, circulated and made available as prescribed in this section.

(b) Determination of nonsignificance. In the case of all type I actions, a notice of determination that an EIS will not be prepared, based on a determination that the proposed action will not have a significant effect on the environment (negative declaration), shall be prepared and filed as indicated below by the department, if it is lead agency. The notice shall state that it is a negative declaration for the purposes of article 8 of the Environmental Conservation Law, shall state the name and address of the department and the name and telephone number of a person who can provide further information, shall briefly and precisely describe the nature, extent and location of the action, and shall briefly state the reasons supporting determination. The department shall maintain files of the written analyses and findings leading to their determinations on all actions subject to SEQR. The notice of determination for type I actions shall be filed simultaneously as follows:

(1) with the Commissioner of Environmental Conservation at 50 Wolf Road, Albany, N.Y. 12233;

(2) with the appropriate regional office of the Department of Environmental Conservation;

(3) in the office of the chief executive officer of the political subdivision in which the action will be principally located;

(4) in the department's main office and appropriate regional or area office;

(5) if the action involves an applicant, with the applicant;

(6) if other agencies are involved in approval of the action, with each other agency. In addition, the department may:

(i) file these determinations with other agencies which may be affected by the action; and

(ii) if it is deemed appropriate upon consideration of all circumstances, provide for such public notice of these determinations as shall afford the opportunity for public response by: readily accessible files in department offices; posting on signboards; incorporation in public notices otherwise required by law; or other appropriate means.

(c) Determination of significance. In the case of all type I and unlisted actions, a notice of determination that a draft EIS will be prepared based on a determination that the proposed action may have a significant effect on the environment (positive declaration), shall be prepared and filed as indicated below by the department, if it is lead agency. The notice shall state that it is a positive declaration for purposes of article 8 of the Environmental Conservation Law, shall state the name and address of the department and the name and telephone number of a person who can provide further information, shall briefly and precisely describe the nature, extent and location of the action, shall briefly describe the possible significant environmental effects that have been identified and shall briefly state the reasons supporting the determination. The department shall maintain files of the written analyses and findings leading to its determinations. The notice of determination shall be filed as prescribed in subdivision (b) of this section.

(d) Notices of completion of draft EIS's. Whenever a draft EIS has been prepared, a notice of its completion shall be prepared and filed as indicated below by the department, if it is lead agency. The notice shall state that it is a notice of completion of a draft EIS, shall state the name and address of the department, and the name and telephone number of a person who can provide further information, and shall also contain the following:

(1) a brief and precise description of the action covered by the statement, the location and nature of its potential environmental impacts and effects;

(2) a statement indicating where and how copies of the statement can be obtained from the department; and

(3) a statement that comments on the statement are requested and will be received and considered by the department at a given address for a stated period (not less than 30 calendar days from the first filing and circulation of the notice of completion, or not less than 10 calendar days following a public hearing at which the environmental impacts of the proposed action are considered).

The notice of completion shall be filed as prescribed in subdivision (b) of this section, and shall be sent to the State clearinghouse and the relevant regional clearinghouse designated under Federal Office of Management and Budget circular A-95.

(e) Draft EIS's. The draft EIS, together with the notice of its completion, shall be filed and made available for copying as follows:

(1) one copy with the Commissioner of Environmental Conservation;

(2) one copy with the appropriate regional office of the Department of Environmental Conservation; (3) one copy with the chief executive officer of the political subdivision in which the action will be principally located;

(4) one copy in the department's main office and one copy in the appropriate regional or area office, if the department is lead agency;

(5) if other agencies are involved in the approval of the action, with each such agency;

(6) one copy with persons requesting it. Where sufficient copies of a statement are not available, the department, if it is lead agency, may charge a fee to persons requesting the statement to cover its costs in making the additional statement available;and

(7) one copy with the Secretary of State where the Department of Health action is in the coastal area.

(f) Notices of hearing. If the department, as lead agency, determines that a hearing is to be held, then it shall prepare a notice of hearing. Such notice shall specify the time, place and purpose of the hearing, and shall contain a summary of the information contained in the notice of completion of the draft EIS. The notice of hearing shall be filed as prescribed in subdivision (b) of this section. A notice of hearing may be given in the notice of completion of the draft EIS and shall be published, at least 14 calendar days in advance of the hearing date, in a newspaper of general circulation in the area of the potential impacts and effects of the action.

(g) Notices of completion of final EIS's. A notice of completion of a final EIS shall be prepared by the department if it is lead agency. It shall state that it is a notice of completion of a final EIS, shall state the name and address of the department, if it is lead agency, and shall contain the items prescribed in paragraphs (d)(1) and (2) of this section. It shall be filed as prescribed in subdivision (b) of this section.

(h) final EIS's. The final EIS, together with the notice of its completion, shall be filed in the same manner as a draft EIS.

(i) Copies of notices, statements and findings required in this Part and prepared by the department shall be retained in a file which is readily accessible for public inspection.
 

Doc Status: 
Complete

Section 97.12 - Contents of environmental impact statements

97.12 Contents of environmental impact statements.

(a) Environmental impact statements are to be clearly written in a brief and concise manner capable of being read and understood by the public. Within the framework presented in subdivision (d) of this section, such statements should address in detail only the specific significant environmental impacts which can be reasonably anticipated. They should not contain more detail than is appropriate considering the nature and magnitude of the proposed action, the significance of its potential impacts and the existing resources and capability of the agency responsible for the statement. Highly technical material shall be summarized, and if it must be included in its entirety, it shall be referenced in the statement and included in an appendix.

(b) Draft and final environmental impact statement shall be preceded by a cover sheet stating:

(1) whether it is a draft or final;

(2) the name or other descriptive title of the action;

(3) the location (county and town, village or city) of the action;

(4) the name and address of the agency which required its preparation and the name and telephone number of a person at the agency to be contacted for further information;

(5) identification of individuals or organizations which prepared any portion of the statement; and

(6) the date of its completion.

(c) If a draft or final environmental impact statement exceeds 10 pages in length, it shall have a table of contents following the cover sheet and a precise summary which adequately summarizes the statement, focusing on issues of controversy, matters to be decided and major conclusions.

(d) The body of all draft and final environmental impact statements shall contain at least the following:

(1) a description of the proposed action, its purpose and need;

(2) a description of the environmental setting;

(3) a statement of the environmental impact of the proposed action, including its short- and long-term effects, and typical associated environmental effects; (4) an identification of any adverse environmental effects which cannot be avoided if the proposed action is implemented;

(5) a description and evaluation of reasonable alternatives to the action which would achieve the same or similar objectives (the description and evaluation should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed; the no-action alternative must be also discussed and evaluated);

(6) an identification of any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented;

(7) a description of mitigation measures proposed to minimize the adverse environmental impacts;

(8) a description of any growth-inducing aspects of the proposed action;

(9) a discussion of the effects of the proposed action on the use and conservation of energy;

(10) a list of any underlying studies, reports and other information obtained and considered by the agency in preparing the statement;

(11) (for final EIS only) copies or a summary of the substantive comments received in response to the draft environmental impact statement and the agency's response to such comment;

(12) all changes made to the draft EIS incorporated in the final EIS shall be specifically indicated and identified as such; and

(13) for State agency actions in the coastal area, an identification of the coastal policies of Executive Law, article 42, as contained in 19 NYCRR 600.5 which are applicable to such actions and a discussion of the effects of the proposed action on such applicable policies; except when that State agency action in the coastal area is within the boundaries of an approved local waterfront revitalization program area, and the action is one identified by the Secretary of State pursuant to section 916(1)(a) of the Executive Law, the identification and discussion shall instead be of the effects of the proposed action on the applicable policies and purposes of such an approved local waterfront revitalization program.

(e) An environmental impact statement may incorporate by reference all or portions of other documents which contain information relevant to the statement. The referenced document shall be made available to the public in the same places where the agency makes available copies of the statement. When a statement uses incorporation by reference, the referenced document shall be briefly described as a part of the annotated bibliography of the EIS and its date of preparation provided.

(f) A final EIS may consist of: the draft EIS, including any necessary revisions to it, copies or a summary of the substantive comments received and their source (whether or not the comments were received in the context of a hearing), and the substantive responses of the department, if it is lead agency, to the comments. All revisions made to the draft EIS shall be specifically indicated and identified as such in the final EIS.

Doc Status: 
Complete

Section 97.13 - Criteria for determining what actions may have a significant effect on the environment

97.13 Criteria for determining what actions may have a significant effect on the environment.

(a) An action may have a significant effect on the environment if it can reasonably be expected to lead to one of the following consequences:

(1) a substantial adverse change to ambient air or water quality or noise levels or in solid waste production, drainage, erosion or flooding;

(2) the removal or destruction of large quantities of vegetation or fauna, the substantial interference with the movement of any resident or migratory fish or wildlife species, impacts on critical habitat areas, or the substantial affecting of a rare or endangered species of animal or plant or the habitat of such species;

(3) the encouraging or attracting of a large number of people to a place or places for more than a few days relative to the number of people who would come to such place absent the action;

(4) the creation of material conflict with a community's existing plans or goals as officially approved or adopted;

(5) the impairment of the character or quality of important historical, archeological, architectural or aesthetic resources or of existing community or neighborhood character;

(6) a major change in the use of either the quantity or type of energy;

(7) the creation of a hazard to human health or safety;

(8) a substantial change in the use, or intensity of use of land or other natural resources or in their capacity to support existing uses except where such a change has been included, referred to, or implicit, in a broad statement prepared pursuant to section 97.17 of this Part;

(9) the creation of a material demand for other actions which would result in one of the above consequences;

(10) changes in two or more elements of the environment, no one of which is substantial, but when taken together result in a material change in the environment; or

(11) two or more related actions no one of which has or would have a significant effect on the environment, but which cumulatively meet one or more of the criteria in this section.

(b) For the purpose of determining whether an action will cause one of the foregoing consequences, the action shall be deemed to include other contemporaneous or subsequent actions (1) which are included in any long-range comprehensive integrated plan of which the action under consideration is a part, (2) which are likely to be undertaken as a result thereof, or (3) which are dependent thereon. The significance of a likely consequence (i.e., whether it is material, substantial, large, important, etc.) should be assessed in connection with its setting (i.e., urban or rural), its probability of occurring, its duration, its irreversibility, its controllability, its geographic scope and its magnitude (i.e., degree of change or its absolute size).
 

Doc Status: 
Complete

Section 97.14 - Lists of department actions

97.14 Lists of department actions.

(a) The purpose of this action is to simplify the tasks of determining whether or not a proposed action may have a significant effect on the environment by identifying actions or classes of actions that are likely to have a significant effect and those which will not have a significant effect. Because of the complex and varied nature of department actions, the lists in this section are not all-inclusive. The omission from the list of an action does not mean that it is exempt from this Part, nor does it mean that it is automatically an action requiring environmental impact statement preparation. The criteria set forth in 6 NYCRR 617.11 and section 97.13 of this Part shall be used to determine significance with respect to actions not listed in this section. The following system is used in this section:

(1) Type I. Actions or classes of actions that are more likely to require preparation of environmental impact statements.

(2) Type II. Actions or classes of actions which have been determined not to have a significant effect on the environment and which do not require environmental impact statements under this Part.

(3) Unlisted. Actions or classes of actions, not excluded or exempt, not listed as a type I or type II action in this Part.

(b) Lists. (Note: This Part does not apply to actions by private persons where ministerial department action is involved. The following lists are intended to cover only actions of the department or actions which must be approved, funded or otherwise acted upon by the department.)

TYPE I

Type I actions or classes of actions are likely to, but will not necessarily, require preparation of environmental impact statements. The following are type I department actions or classes of actions:

(1) Project approval and/or construction funding of a facility subject to article 28 of the Public Health Law which meets or exceeds any of the following thresholds; or the expansion of a facility subject to article 28 of the Public Health Law by more than 50 percent of any of the following thresholds, providing that the expansion and existing facilities, when combined, meet or exceed any threshold contained in this section:

(i) a project or action which involves the physical alteration of 10 acres;

(ii) a project or action which would use ground or surface water in excess of 2,000,000 gallons per day;

(iii) parking for 1,000 vehicles;

(iv) in a city, town or village having a population of 150,000 persons or less, a facility with more than 100,000 square feet of gross floor area;

(v) in a city, town or village having a population of more than 150,000 persons, a facility with more than 240,000 square feet of gross floor area.

(2) Initial plan approval:

(i) public water systems, community and noncommunity;

(ii) realty subdivisions;

(iii) mobile home parks;

(iv) public swimming pools;

(v) public bathing beaches;

(vi) children's camps (summer day and overnight);

(vii) hotel/motel;

(viii) mass gathering;

(ix) travel vehicle parks and campsites.

(3) Approval or funding of insect control programs.

(4) Any action (unless the action is designated for the preservation of the facility or site) occurring wholly or partially within, or contiguous to, any facility or site listed on the National Register of Historic Places, or any historic building, structure or site, or prehistoric site, that has been proposed by the Committee on the Registers for consideration by the New York State Board for Historic Preservation for a recommendation to the State Historic Officer for nomination for inclusion in said National Register.

(5) Any structure exceeding 100 feet above original ground level in a locality without any zoning regulation to height.

TYPE II

The following type II actions or classes of action by the department are ministerial or have been determined not to have a significant effect on the environment and do not require environmental impact statements under this Part:

(1) issuance of any permit, certification or registration which does not relate to construction;

(2) license and permit renewals where there will be no material change in permit conditions or the scope of permitted activities;

(3) Issuance of a birth or death certificate, or other vital record;

(4) replacement of a facility, in kind, on the same site unless such facility meets any of the criteria set forth in section 97.13 of this Part;

(5) construction or placement of minor structures accessory or appurtenant to existing facilities, including garages, carports, patios, home swimming pools, fences, barns or other buildings not changing land use or density;

(6) maintenance of existing landscaping or natural growth; (7) Information collection, including basic data collection and research, master plan study components, water quality and pollution studies, traffic counts, engineering studies, boring studies, surveys and soils studies that are not a preliminary step towards any given type I project;

(8) minor temporary uses of land having negligible or no permanent effect on the environment;

(9) the extension of utility distribution facilities to serve new or altered single- or two-family residential structures or to render service in approved subdivisions;

(10) approval of an establishment, and/or construction application, submitted by or for a facility subject to article 28 of the Public Health Law, involving a change of name or ownership only, or a transfer of stock only, or involving reduction in the number of existing beds or the conversion of existing beds to the same or a lesser number of different level of care beds; and

(11) review or approval of a certificate of incorporation, certificate of authority, amendment thereto, or similar document, when such review or approval is mandated by the Not-for-Profit Corporation Law or other similar law and when the certificate of incorporation, certificate of authority, amendment thereto, or similar document is not part of an establishment application.
 

Doc Status: 
Complete

Section 97.15 - Actions involving a Federal agency

97.15 Actions involving a Federal agency.

(a) When a draft and final EIS for an action have been prepared under the National Environmental Policy Act of 1869, the department shall have no obligation to prepare an additional EIS under this Part. However, except in the case of excluded or exempt actions, the department may not undertake or approve the action until the Federal final EIS has been completed and the agency has made the findings prescribed in section 97.10 of this Part and 6 NYCRR 617.9.

(b) Where a negative declaration or other written threshold determination that the action will not require a Federal impact statement has been prepared under the National Environmental Policy Act of 1969, the determination shall not constitute compliance with SEQR. In such cases, the department retains its responsibilities for compliance with SEQR.

(c) In the case of an action involving a Federal agency for which either a Federal negative declaration or a Federal draft and final EIS has been prepared, except where otherwise required by law, a final decision by a Federal agency shall not be controlling on any State or local agency decision on the action.

(d) No SEQR findings are required for actions which are excluded or exempt from SEQR.
 

Doc Status: 
Complete

Section 97.16 - Fees and costs

97.16 Fees and costs.

(a) When an action subject to this Part involves an applicant, the department, if it is lead agency, may charge a fee to the applicant in order to recover the actual costs of preparing or reviewing the EIS; provided, however, that an applicant may not be charged a separate fee for both the preparation and review of an EIS, and provided further, that any fee charged must reflect the actual costs to the lead agency for such preparation or review. Where an applicant does not choose to prepare the EIS, the department shall provide the applicant, upon request, with an estimate of the costs for preparing such statement based on the total cost of the project for which funding or approval is sought.

(b) For residential projects, the total project cost shall be the cost of the land plus the cost of all site improvements required, not including the cost of buildings and structures. In the case of a residential project, the fee charged by the department may not exceed two percent of the total project cost.

(c) For nonresidential construction projects, the total project cost shall be the cost of supplying utility service to the project, the cost of site preparation and the cost of labor and material as determined with reference to a current cost data publication in common usage, such as Building Construction Cost Data by Means. In the case of construction projects, the fee charged may not exceed one half of one percent of the total project cost.

(d) Appeals procedure. When a dispute arises concerning fees charged to an applicant by the department, the applicant may make a written request setting forth reasons why it is felt that such fees are inequitable. Upon receipt of a request, the chief fiscal officer of the department or his designee shall examine the agency record and prepare a written response to the applicant setting forth reasons why the applicant's claims are valid or invalid.

(e) Any fees paid by the department for the technical services of the Department of Environmental Conservation will be reflected in the fee charged to any applicant pursuant to subdivision (a) of this section.
 

Doc Status: 
Complete

Section 97.17 - Programmatic or generic environmental impact statements

97.17 Programmatic or generic environmental impact statements.

(a) A programmatic or generic environmental impact statement may be used to assess the environmental effects of:

(1) a number of separate actions in a given geographic area which, if considered singly may have minor effects, but if considered together may have significant effects;

(2) a sequence of actions, contemplated by a single agency or individual;

(3) separate actions having generic or common impacts; or

(4) programs or plans having wide application or restricting the range of future alternatives policies or projects.

(b) Generic or programmatic statements should set forth specific conditions or criteria under which future actions will be undertaken or approved, and shall include procedures and criteria for amendments or supplements to reflect impacts, such as site-specific impacts, which cannot be adequately addressed or analyzed in the initial statement. Such procedures shall include provision for public notice of amendments or supplements which allow for comment thereon in the same manner as was provided in respect to the original statement.

(c) When an individual action is proposed which was encompassed in a programmatic EIS and the action is to be carried out in conformance with the conditions discussed in the programmatic statement, a subsequent EIS should be prepared only if there are site-specific impacts to be addressed.

(d) In connection with projects that are to be developed in phases or stages, the department should address not only the site-specific impacts of the individual project under consideration, but also, in more general or conceptual terms, the cumulative effects on the environment and existing natural resource base of subsequent phases of a larger project or series of projects that may be developed in the future, and that are under the ownership or control of the same project sponsor. In these cases, this part of the EIS shall discuss the important elements and constraints present in the natural and man-made environment, that may bear on the conditions of an agency decision on the immediate project.
 

Doc Status: 
Complete

Section 97.18 - Confidentiality

97.18 Confidentiality.

When an applicant submits a completed EAF, draft or final EIS, or otherwise provides information concerning the environmental impact of a proposed project, the applicant may request that specifically identified information be held confidential upon a showing by the applicant that such information constitutes a trade secret. Prior to divulging any such information, the department shall notify the applicant of its determination of whether or not it will hold the information confidential.
 

Doc Status: 
Complete

Section 97.19 - Effective date

97.19 Effective date.

This Part shall take effect as provided in article 8 of the Environmental Conservation Law.
 

Doc Status: 
Complete

SubChapter R - Managed Care Organizations

SUBCHAPTER R
Managed Care Organizations

PART

98 Managed Care Organizations

Effective Date: 
Tuesday, November 10, 2015
Doc Status: 
Complete