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This entry was published on 2014-09-22
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SECTION 8-0109
Preparation of environmental impact statement
Environmental Conservation (ENV) CHAPTER 43-B, ARTICLE 8
§ 8-0109. Preparation of environmental impact statement.

1. Agencies shall use all practicable means to realize the policies
and goals set forth in this article, and shall act and choose
alternatives which, consistent with social, economic and other essential
considerations, to the maximum extent practicable, minimize or avoid
adverse environmental effects, including effects revealed in the
environmental impact statement process.

2. All agencies (or applicant as hereinafter provided) shall prepare,
or cause to be prepared by contract or otherwise an environmental impact
statement on any action they propose or approve which may have a
significant effect on the environment. Such a statement shall include a
detailed statement setting forth the following:

(a) a description of the proposed action and its environmental
setting;

(b) the environmental impact of the proposed action including
short-term and long-term effects;

(c) any adverse environmental effects which cannot be avoided should
the proposal be implemented;

(d) alternatives to the proposed action;

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

(f) mitigation measures proposed to minimize the environmental impact;

(g) the growth-inducing aspects of the proposed action, where
applicable and significant;

(h) effects of the proposed action on the use and conservation of
energy resources, where applicable and significant, provided that in the
case of an electric generating facility, the statement shall include a
demonstration that the facility will satisfy electric generating
capacity needs or other electric systems needs in a manner reasonably
consistent with the most recent state energy plan;

* (i) effects of proposed action on solid waste management where
applicable and significant; and

* NB There are 2 (i)'s

* (i) effects of any proposed action on, and its consistency with, the
comprehensive management plan of the special groundwater protection area
program, as implemented by the commissioner pursuant to article
fifty-five of this chapter; and

* NB There are 2 (i)'s

(j) such other information consistent with the purposes of this
article as may be prescribed in guidelines issued by the commissioner
pursuant to section 8-0113 of this chapter.

Such a statement shall also include copies or a summary of the
substantive comments received by the agency pursuant to subdivision four
of this section, and the agency response to such comments. The purpose
of an environmental impact statement is to provide detailed information
about the effect which a proposed action is likely to have on the
environment, to list ways in which any adverse effects of such an action
might be minimized, and to suggest alternatives to such an action so as
to form the basis for a decision whether or not to undertake or approve
such action. Such statement should be clearly written in a concise
manner capable of being read and understood by the public, should deal
with the specific significant environmental impacts which can be
reasonably anticipated and should not contain more detail than is
appropriate considering the nature and magnitude of the proposed action
and the significance of its potential impacts.

3. An agency may require an applicant to submit an environmental
report to assist the agency in carrying out its responsibilities,
including the initial determination and, (where the applicant does not
prepare the environmental impact statement), the preparation of an
environmental impact statement under this article. The agency may
request such other information from an applicant necessary for the
review of environmental impacts. Notwithstanding any use of outside
resources or work, agencies shall make their own independent judgment of
the scope, contents and adequacy of an environmental impact statement.

4. As early as possible in the formulation of a proposal for an
action, the responsible agency shall make an initial determination
whether an environmental impact statement need be prepared for the
action. When an action is to be carried out or approved by two or more
agencies, such determination shall be made as early as possible after
the designation of the lead agency.

With respect to actions involving the issuance to an applicant of a
permit or other entitlement, the agency shall notify the applicant in
writing of its initial determination specifying therein the basis for
such determination. Notice of the initial determination along with
appropriate supporting findings on agency actions shall be kept on file
in the main office of the agency for public inspection.

If the agency determines that such statement is required, the agency
or the applicant at its option shall prepare or cause to be prepared a
draft environmental impact statement. If the applicant does not exercise
the option to prepare such statement, the agency shall prepare it, cause
it to be prepared, or terminate its review of the proposed action. Such
statement shall describe the proposed action and reasonable alternatives
to the action, and briefly discuss, on the basis of information then
available, the remaining items required to be submitted by subdivision
two of this section. The purpose of a draft environmental statement is
to relate environmental considerations to the inception of the planning
process, to inform the public and other public agencies as early as
possible about proposed actions that may significantly affect the
quality of the environment, and to solicit comments which will assist
the agency in the decision making process in determining the
environmental consequences of the proposed action. The draft statement
should resemble in form and content the environmental impact statement
to be prepared after comments have been received and considered pursuant
to subdivision two of this section; however, the length and detail of
the draft environmental statement will necessarily reflect the
preliminary nature of the proposal and the early stage at which it is
prepared.

For any action for which the agency determines that such statement is
not required and which would take place in a special groundwater
protection area, as defined in section 55-0107 of this chapter, the
agency shall show how such action would or would not be consistent with
the comprehensive management plan of the special groundwater protection
program, as implemented by the commissioner pursuant to article
fifty-five of this chapter.

The draft statement shall be filed with the department or other
designated agencies and shall be circulated to federal, state, regional
and local agencies having an interest in the proposed action and to
interested members of the public for comment, as may be prescribed by
the commissioner pursuant to section 8-0113. In addition, unless
impracticable, the draft statement shall be posted on a
publicly-available Internet website. The website posting of such draft
statement may be discontinued when the environmental impact statement is
posted pursuant to subdivision six of this section.

5. After the filing of a draft environmental impact statement the
agency shall determine whether or not to conduct a public hearing on the
environmental impact of the proposed action. If the agency determines to
hold such a hearing, it shall commence the hearing within sixty days of
the filing and unless the proposed action is withdrawn from
consideration shall prepare the environmental impact statement within
forty-five days after the close of the hearing, except as otherwise
provided. The need for such a hearing shall be determined in accordance
with procedures adopted by the agency pursuant to section 8-0113 of this
article. If no hearing is held, the agency shall prepare and make
available the environmental impact statement within sixty days after the
filing of the draft, except as otherwise provided.

Notwithstanding the specified time periods established by this
article, an agency shall vary the times so established herein for
preparation, review and public hearings to coordinate the environmental
review process with other procedures relating to review and approval of
an action. An application for a permit or authorization for an action
upon which a draft environmental impact statement is determined to be
required shall not be complete until such draft statement has been filed
and accepted by the agency as satisfactory with respect to scope,
content and adequacy for purposes of paragraph four of this section.
Commencing upon such acceptance, the environmental impact statement
process shall run concurrently with other procedures relating to the
review and approval of the action so long as reasonable time is provided
for preparation, review and public hearings with respect to the draft
environmental impact statement.

6. To the extent as may be prescribed by the commissioner pursuant to
section 8-0113, the environmental impact statement prepared pursuant to
subdivision two of this section together with the comments of public and
federal agencies and members of the public, shall be filed with the
commissioner, made available to the public, and, unless impracticable,
posted on a publicly-available Internet website prior to acting on the
proposal which is the subject of the environmental impact statement. The
website posting of such statement may be discontinued one year after all
necessary permits have been issued by the federal, state and local
governments.

7. a. An agency may charge a fee to an applicant in order to recover
the costs incurred in preparing or causing to be prepared or reviewing a
draft environmental impact statement or an environmental impact
statement on the action which the applicant requests from the agency;
provided, however, that an applicant may not be charged a separate fee
for both the preparation and review of such statements. The technical
services of the department may be made available on a fee basis
reflecting the costs thereof, to a requesting agency, which fee or fees
may appropriately be charged by the agency to the applicant under rules
and regulations to be issued under section 8-0113.

b. Such rules and regulations shall require the applicant to reimburse
the conservation fund, as established pursuant to subdivision (a) of
section eighty-three of the state finance law, in order to recover all
costs incurred in preparing or causing to be prepared or reviewing a
draft environmental impact statement or an environmental impact
statement by employees of the department, whose salary and expenses are
paid, in whole or in part, from the conservation fund.

8. When an agency decides to carry out or approve an action which has
been the subject of an environmental impact statement, it shall make an
explicit finding that the requirements of this section have been met and
that 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.

9. An environmental impact statement shall be prepared for any action
found to have a significant impact on the special groundwater protection
area, as defined in section 55-0107 of this chapter. Such statement
shall meet the requirements of the most detailed environmental impact
statement required by this section or by any such rule or regulation
promulgated pursuant to this section.