Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. This the sixth post in our series examining the proposed amendments.  The focus of this post is mandatory scoping.

Scoping, which was added to the SEQRA regulations in 1987, is “the process by which the lead agency identifies the potentially significant adverse impacts related to the proposed action that are to be addressed in the draft EIS,” in essence focusing the EIS process on those issues that are most relevant. Initially, scoping was optional and did not require public input.  After the 1995 amendments, scoping remained optional but was strongly recommended, and if undertaken, must include a draft scope for public review.

Under the proposed amendments, scoping would become mandatory for all environmental impact statements and may be initiated by the lead agency or the project sponsor. The amended regulations also place a strong emphasis on using the recently revised environmental assessment forms (“EAFs”) early in the scoping process to better define what issues warrant additional scrutiny in the EIS, as opposed to those issues that may be excluded as minor or not impactful.

The amendments would also modify the standard for accepting or rejecting the adequacy of a draft EIS.  Currently, the project sponsor must accept or defer issues that arise after preparation of the final written scope. However, a lead agency may currently undermine this decision by rejecting a draft EIS as inadequate for failing to include deferred issues.  Under the proposed regulation, a project sponsor’s decision to defer an issue and treat it as a public comment about the draft EIS, to be included in the final draft, cannot be a basis for the lead agency to reject a draft EIS as inadequate. In addition, determining the adequacy of a resubmitted draft EIS can only be based upon the written list of deficiencies provided by the lead agency following the previous review.  As a result, DEC hopes that project sponsors will take a less “defensive approach” to creating EIS records and leave out extraneous information that is often included in pursuit of creating a “bullet proof EIS” draft.  

DEC will hold a public hearing on the regulations on March 31, 2017, and be accept comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.