Opn. No. ( 1979 )

ENVIRONMENTAL CONSERVATION LAW, § 8-0107; MUNICIPAL HOME RULELAW, §§ 10 (1)(i), 10(1)(ii)(a)(1), (3); TOWN LAW, § 64 (23);6 NYCRR 617.4, 617.6, 617.7.

In implementing the Environmental Quality Review Act, (1) agencies must use the procedures in 6 NYCRR Part 617 to the greatest extent possible, but may modify them to accommodate the particular requirements of each agency; (2) any procedural changes would be made by the body vested with the authority to do so; and (3) the town board may not designate one agency as permanent lead agency. Hon. Stanley E. Anderson, Jr. Town Attorney, Lewisboro

This is in response to your letter concerning the requirements of the State Environmental Quality Review Act, or SEQR (Environmental Conservation Law, Art 8). In general, your inquiry relates to the relationship between Environmental Conservation Law, § 8-0107 and6 NYCRR 617.4.

Section 8-0107 of the Environmental Conservation Law provides:

"§ 8-0107. Agency implementation

"All agencies shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this article, and shall recommend or effect such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this article. They shall carry out its terms with minimum procedural and administrative delay, shall avoid unnecessary duplication of reporting and review requirements by providing, where feasible, for combined or consolidated proceedings, and shall expedite all proceedings hereunder in the interests of prompt review."

Insofar as relevant, 6 NYCRR 617.4 provides:

"617.4 Individual agency procedures to implement SEQR.

"(a) Article 8 of the Environmental Conservation Law requires all agencies to adopt and publish, after public hearing, any additional procedures which may be necessary for them to implement SEQR. Until an agency adopts these additional procedures, its implementation of SEQR shall be governed by the provisions of this Part.

"(b) To the greatest extent possible, the procedures prescribed in this Part shall be incorporated into existing agency procedures. An agency shall vary the time periods established in this Part for the preparation and review of SEQR materials and for the conduct of public hearings in order to coordinate the SEQR environmental review process with other procedures relating to the review and approval of actions. * * *" (Emphasis supplied.)

You ask whether each individual agency must either adopt its own regulations or use those of Part 617, and whether the town board may adopt regulations for all local agencies in the town.

Section 8-0107 of the Environmental Conservation Law may be read compatibly with 6 NYCRR 617.4. Although paragraph (b) of6 NYCRR 617.4 requires use of the procedures in Part 617 to the greatest extent possible, paragraph (a) authorizes the adoption of additional procedures by which the agency may implement SEQR. For example, an agency may vary an appropriate time period to allow coordination of the SEQR process with whatever local procedure is applicable to the particular type of action. It is possible that an individual board or agency may determine that the provisions of Part 617 are sufficient, and that no additional procedures are necessary.

Any procedural changes would be made by the body vested with the authority to do so. If the authority is not specifically vested in a particular agency or board, the town board would be the proper body to make the changes, pursuant to Town Law, § 64 (23) and Municipal Home Rule Law, §§ 10(1)(i) and 10(1)(ii)(a)(1),(3).

You also ask whether the town board may designate one town group, committee, or agency as permanent lead agency. It may not. If there is a question as to which of two or more agencies is the lead agency in an action, any agency may submit the question to the Commissioner of Environmental Conservation, who shall designate the lead agency, pursuant to Environmental Conservation Law, § 8-0111 (6) and 6 NYCRR 617.6, 617.7.

In summary, it is our opinion that in implementing the Environmental Quality Review Act, (1) agencies must use the procedures in 6 NYCRR Part 617 to the greatest extent possible, but may modify them to accommodate the particular requirements of each agency; (2) any procedural changes would be made by the body vested by law with the authority to do so; and (3) the town board may not designate one agency as permanent lead agency.