SEQRA Step-By-Step: PART 2 - Classifying Actions Under SEQRA

In Part 1 of our SEQRA Step-by-Step series, we explored the purpose of the New York State Environmental Quality Review Act (SEQRA) and when it applies. In this post, we turn to the very first procedural step once you determine SEQRA applies - classifying the action. Correct classification under SEQRA is crucial, as it determines the level of review required, the forms to be completed, and whether the review must be coordinated among multiple agencies.

SEQRA regulations divide actions into three categories: Type I, Unlisted, and Type II, each with specific criteria, examples, and procedural requirements. Understanding these categories ensures compliance and sets the stage for a smooth environmental review process.

Type I Actions

Type I actions are those that are more likely to have significant adverse impacts on the environment. These actions meet or exceed specific thresholds listed in SEQRA regulations.

Examples include:

• Construction of 250 or more housing units in a municipality of fewer than 150,000 people

• Projects that physically alter 10 or more acres of land

• Non-residential projects exceeding 100,000 square feet of gross floor area

• Substantial changes in allowable uses in zoning regulations affecting 25 or more acres

• Projects that may affect a property listed on (or eligible for) the State or National Register of Historic Places

• Construction of facilities generating more than 2,500 vehicles per day at full buildout

Key Points About Type I Actions:

• Review Requirements: These actions typically require a Full Environmental Assessment Form (FEAF) and may necessitate the preparation of a Draft Environmental Impact Statement (DEIS).

• Coordinated Review: A coordinated review is mandatory, meaning all involved agencies must agree on a lead agency to oversee the environmental review process. This process will be covered in a subsequent blog post.

• Public Notice: Type I classification triggers public notice requirements.

Unlisted Actions

Unlisted actions do not meet Type I thresholds, are not listed as Type II but are not exempt from SEQRA review. This broad category includes many common municipal and development projects.

Examples include:

• Small-scale commercial or residential developments under Type I thresholds

• Site plan approvals for mid-sized projects

• Minor zoning amendments affecting fewer than 25 acres

• Modifications to existing facilities that may still have environmental impacts

Key Points About Unlisted Actions:

• Flexibility in Review: Unlisted actions generally require a Short Environmental Assessment Form (SEAF). However, if the reviewing agency determines more detailed information is necessary, a FEAF may be required.

• Discretionary Review: The lead agency has the discretion to determine the significance of the environmental impacts and whether a DEIS is needed.

• Coordinated or Uncoordinated Review: Unlisted actions can undergo either coordinated or uncoordinated reviews. In an uncoordinated review, each involved agency conducts its own review and makes its own determination.

Type II Actions

Type II actions are predefined activities that are deemed to not have significant adverse environmental impacts and are thus exempt from further SEQRA review. These actions typically include minor or routine activities.

Examples include:

• Routine maintenance and repair of existing facilities

• Replacement or rehabilitation of structures in kind

• Construction of accessory residential structures such as garages or sheds

• Ministerial acts like issuing a building permit for a code-compliant structure

• Adoption of regulations that set or amend fees without environmental effect

Key Points About Type II Actions:

• No Further Review Required: Once an action is classified as Type II, no further SEQRA review, or determination of significance is required.

• Documentation (Optional): Although not mandatory, agencies may document the classification of an action as Type II for their records.

• Efficiency: Early recognition of Type II status saves time and resources.

Why Classification Matters

Whether an action is Type I, Unlisted, or Type II under SEQRA determines the depth and structure of the environmental review process and misclassification can delay projects, lead to legal challenges, or invalidate agency decisions. Correct classification ensures compliance, sets the scope for review, helps determine coordination and public involvement needs, and reduces the risk of procedural errors.

If you have questions about SEQRA, need assistance with SEQRA, or are seeking guidance with an Environmental, Land Use & Zoning, or Municipal Law matter, please contact Jacob H. Zoghlin at 585-258-2834 or jzoghlin@underbergkessler.com or Mindy L. Zoghlin at 585-258-2871 or mzoghlin@underbergkessler.com.