N.Y. Environmental Conservation Law § 8-0111: Coordination of reporting; limitations; lead agency

§ 8-0111. Coordination of reporting; limitations; lead agency.

1. State and federal reports coordinated. Where an agency as herein

defined directly or indirectly participates in the preparation of or

prepares a statement or submits material relating to a statement

prepared pursuant to the requirements of the National Environmental

Policy Act of 1969, whether by itself or by another person or firm,

compliance with this article shall be coordinated with and made in

conjunction with federal requirements in a single environmental

reporting procedure.

2. Federal report. Where the agency does not participate, as above

defined, in the preparation of the federal environmental impact

statement or in preparation or submission of materials relating thereto,

no further report under this article is required and the federal

environmental impact statement, duly prepared, shall suffice for the

purpose of this article.

3. State and local coordination. Necessary compliance by state or

local agencies with the requirements of this article shall be

coordinated in accordance with section 8-0107 and with other

requirements of law in the interests of expedited proceedings and prompt

review.

4. Effective date of coordinated reporting. The requirements of this

section with regard to coordinated preparation of federal and state

impact materials and reporting shall not apply to statements prepared

and filed prior to the effective date of this article.

5. Exclusions. The requirements of this article shall not apply to:

(a) Actions undertaken or approved prior to the effective date of this

article, except:

(i) In the case of an action where it is still practicable either to

modify the action in such a way as to mitigate potentially adverse

environmental effects or to choose a feasible and less environmentally

damaging alternative, in which case the commissioner may, at the request

of any person or on his own motion, in a particular case, or generally

in one or more classes of cases specified in rules and regulations,

require the preparation of an environmental impact statement pursuant to

this article; or

(ii) In the case of an action where the responsible agency proposes a

modification of the action and the modification may result in a

significant adverse effect on the environment, in which case an

environmental impact statement shall be prepared with respect to such

modification.

* (b) Actions subject to the provisions requiring a certificate of

environmental compatibility and public need in articles seven and ten of

the public service law or requiring a major renewable energy facility or

a major electric transmission facility siting permit under article eight

of the public service law; or

* NB Effective until December 31, 2040

* (b) Actions subject to the provisions requiring a certificate of

environmental compatibility and public need in articles seven, ten and

the former article eight of the public service law or requiring a siting

permit under section ninety-four-c of the executive law; or

* NB Effective December 31, 2040

(c) Actions subject to the class A or class B regional project

jurisdiction of the Adirondack park agency or a local government

pursuant to section eight hundred seven, eight hundred eight or eight

hundred nine of the executive law, except class B regional projects

subject to review by local government pursuant to section eight hundred

seven of the executive law located within the Lake George park as

defined by subdivision one of section 43-0103 of this chapter.

5-a. Exemptions. (a) Notwithstanding any law, rule, or regulation to

the contrary, the qualified actions listed in paragraph (b) of this

subdivision shall be exempt from the requirements of this article as

determined by the responsible agency. In making this determination, the

responsible agency shall consider the action as a whole. If the

responsible agency determines that no aspect of the action requires

review under this article, meaning every aspect of the action meets

criteria for exemption pursuant to paragraph (b) of this subdivision or

is otherwise exempt from the requirements of this article, the agency

may proceed in accordance with the criteria and standards for final

decision under other applicable laws, regulations, and ordinances.

(b) An action that is not otherwise exempt from the requirements of

this article, which may include building permits, special use permits,

variances, subdivision approvals, site plan approvals, zoning text or

map amendments, disposition or acquisition of real property, provision

of financial assistance, any other actions governed by laws, rules,

regulations, or procedures concerning land use, zoning, permitting, real

property acquisition or disposition, or development financial

assistance, or any combination thereof, shall be a qualified action

exempt from the requirements of this article if the responsible agency

determines that the action is for the purposes of:

(i) construction of housing in cities, towns, and villages with

populations of one million or more that shall:

(1) be connected to existing community or public water and sewerage

systems at the commencement of habitation;

(2) be located at a previously disturbed site;

(3) not be located within an area zoned exclusively for industrial

uses;

(4) contain no more than fifty thousand square feet of commercial,

retail, community facility, or other non-industrial non-residential

uses;

(5) not exceed two hundred fifty dwelling units, provided, however,

that for housing that shall be located within a zoning district where,

at the time of application, (A) the standard maximum residential

building height is greater than forty-five feet, (B) the maximum height

of a building is regulated by something other than a horizontal plane

and that allows residential buildings to exceed forty-five feet, or (C)

there is no such maximum building height, such housing shall not exceed

five hundred dwelling units; and

(6) not include construction of only one single-family residence on a

parcel of one-half or more acres;

(ii) construction of housing in cities, towns, and villages with

populations of fewer than one million persons that shall:

(1) be connected to existing community or public water and sewerage

systems at the commencement of habitation;

(2) be located at a previously disturbed site;

(3) contain no more than twenty percent commercial, retail, community

facility, or other non-industrial non-residential uses by gross floor

area;

(4) not exceed one hundred dwelling units, provided, however, for

housing within cities, towns, or villages without zoning, such housing

shall not exceed twenty dwelling units, and provided further, that for

housing not within cities, towns, or villages without zoning but within

an urban area, as such term or equivalent term is or comes to be defined

by the United States Census Bureau in the most recent decennial census

beginning on or after the two thousand twenty decennial census, such

housing shall not exceed three hundred dwelling units; and

(5) not include construction of only one single-family residence on a

parcel of one or more acres;

(iii) construction located at a previously disturbed site of public

parks that do not include performance centers, athletic stadiums, or

other venues for mass gatherings, or other buildings or structures which

do not serve public park, recreation, or open space purposes;

(iv) construction located at a previously disturbed site of multi-use

bicycle and pedestrian trails;

(v) construction of public school facilities to be connected at the

commencement of use to existing community or public water and sewerage

systems, including sewage treatment works, in a city with a population

of one million or more;

(vi) water and wastewater infrastructure projects that:

(1) replace, rehabilitate or reconstruct municipal water or wastewater

infrastructure, in-kind and on the same site, including lead service

line replacement;

(2) replace, rehabilitate, upgrade or reconstruct an existing small

community water system, including lead service line replacement; or

(3) provide sewer service to a disadvantaged community served by one

or more inadequate sewage treatment systems that has been determined by

the department not to require a permit or approval pursuant to articles

fifteen, twenty-four or twenty-five of this chapter or any rules or

regulations promulgated thereunder; or

(vii) retrofit of an existing structure and its appurtenant areas to

incorporate green infrastructure.

(c) (i) For an application for a permit or authorization for a

qualified action listed in subparagraph (i) or (v) of paragraph (b) of

this subdivision, to qualify for exemption from the requirements of this

article pursuant to this subdivision, such action shall be subject to a

requirement to comply with local municipal requirements regarding

hazardous materials remediation to the extent applicable, and the

applicant for a permit or authorization for such qualified action shall

certify that (1) it has followed and will follow all applicable laws,

rules, and regulations regarding hazardous waste, (2) for an application

for a permit or authorization for a qualified action other than a land

use action, zoning text amendment, zoning map amendment, or variance, a

Phase I Environmental Site Assessment has been conducted for the parcel

in accordance with the all appropriate inquiries regulations of the

United States Environmental Protection Agency under the federal

Comprehensive Environmental Response, Compensation and Liability Act (40

CFR § 312) to identify any recognized environmental conditions, (3) it

has followed or will follow all applicable recommendations of the Phase

I Environmental Site Assessment, and (4) it will report contamination

at, on, or under the parcel as required by applicable laws, rules, and

regulations.

(ii) For an application for a permit or authorization for a qualified

action listed in subparagraph (ii) of paragraph (b) of this subdivision,

other than a land use action, zoning text amendment, zoning map

amendment, or variance, to qualify for exemption from the requirements

of this article pursuant to this subdivision, the applicant for a permit

or authorization for such qualified action shall certify to the

responsible agency that (1) a Phase I Environmental Site Assessment has

been conducted for the parcel in accordance with the all appropriate

inquiries regulations of the United States Environmental Protection

Agency under the federal Comprehensive Environmental Response,

Compensation and Liability Act (40 CFR § 312) to identify any recognized

environmental conditions, (2) it has followed and will follow all

applicable laws, rules, and regulations regarding hazardous waste,

including, to the extent applicable, complying with local municipal

requirements regarding hazardous materials remediation, (3) it has

followed or will follow all applicable recommendations of the Phase I

Environmental Site Assessment, and (4) it will report contamination at,

on, or under the parcel as required by applicable laws, rules, and

regulations.

(iii) The requirements of this paragraph shall not apply (1) to a

qualified action initiated by an agency, or (2) if the applicant was

previously granted an exemption pursuant to subparagraphs (i), (ii), or

(v) of paragraph (b) of this subdivision for the same parcel.

(d) For actions involving applications for a permit or authorization,

the responsible agency shall determine whether such action is a

qualified action pursuant to this subdivision within one hundred twenty

days of receipt of such application, unless the responsible agency

extends the deadline in writing and, in consultation with an applicant

and at the discretion of the agency, establishes a new deadline that

provides only so much additional time as is necessary to make such

determination. In no event shall the deadline be extended by more than

thirty days, except where (i) changes are made by the applicant to the

application after its submission to the responsible agency and such

changes relate to the criteria for exemption pursuant to paragraph (b)

of this subdivision, (ii) an applicant fails to timely provide necessary

information despite good faith effort by an agency, or (iii) there are

circumstances beyond the control of the agency or an applicant that

cause delay requiring an extension beyond thirty days. If the

responsible agency fails to make a determination pursuant to this

subdivision within the delineated time limits, an applicant may

institute a proceeding in a court of competent jurisdiction under

article seventy-eight of the civil practice law and rules seeking

appropriate relief from the court, which may include an order directing

the agency to make a determination by a deadline specified by the court.

6. Lead Agency. When an action is to be carried out or approved by two

or more agencies, the determination of whether the action may have a

significant effect on the environment shall be made by the lead agency

having principal responsibility for carrying out or approving such

action and such agency shall prepare, or cause to be prepared by

contract or otherwise, the environmental impact statement for the action

if such a statement is required by this article. In the event that there

is a question as to which is the lead agency, any agency may submit the

question to the commissioner and the commissioner shall designate the

lead agency, giving due consideration to the capacity of such agency to

fulfill adequately the requirements of this article.

7. Statute of limitations. The time to commence a proceeding to review

an agency determination under the provisions of this article or under

the rules or regulations implementing the provisions of this article

shall begin to accrue when the agency determination to approve or

disapprove the action becomes final and binding upon the petitioner or

the person whom the petitioner represents in law or in fact.

8. Construction. Nothing contained in the chapter of the laws of two

thousand twenty-six which added this subdivision shall be interpreted or

construed as superseding, limiting, modifying or affecting any

authorizations, requirements, or procedures under the national historic

preservation act of nineteen hundred sixty-six, the New York state

historic preservation act of nineteen hundred eighty, the parks,

recreation and historic preservation law, or any other state or local

law governing the identification, protection, or management of historic

properties, or under any rules or regulations promulgated thereunder.

Nor shall anything in the chapter of the laws of two thousand twenty-six

which added this subdivision be interpreted or construed as superseding,

limiting, modifying or affecting any authorizations, requirements, or

procedures, including but not limited to laws, rules and regulations

applicable to disadvantaged communities, stormwater management or the

protection of water quality, air quality, soil erosion and drainage,

freshwater wetlands, tidal wetlands, critical environmental areas, or

threatened or endangered species, or any otherwise applicable statutory

or regulatory standards, criteria, and permitting procedures, other than

those pertaining to environmental review conducted pursuant to this

article and any state and local regulations promulgated thereunder. Nor

shall anything in the chapter of the laws of two thousand twenty-six

which added this subdivision be interpreted or construed as superseding,

limiting, modifying or affecting the authority or discretion of cities,

towns, and villages under applicable state or local law, rule,

regulation, charter, code, resolution, or ordinance regarding zoning or

land use, including but not limited to any such authority or discretion

regarding site plan review or other discretionary zoning or land use

permits, procedures, review, or approvals, such as traffic studies,

contamination testing, and determinations of the sufficiency of

wastewater and drinking water capacity.