In Matter of Stop-The-Barge v. Cahill (1 NY3d 218 [2003]) a predecessor of New York City Energy LLC (NYCE) submitted an environmental assessment statement to the DEP to obtain permits to install a power generator on a floating barge. DEP, the lead agency for purposes of conducting a coordinated SEQRA review, issued a conditional negative declaration concluding that the project posed no significant adverse environmental impact, and, therefore, required no EIS. Petitioners therein offered no comments, and the declaration became final, concluding SEQRA review. Simultaneously, NYCE applied to the DEC for an air permit pursuant to ECL, Article 19. After a 30-day public comment period, and a legislative hearing, DEC determined that an adjudicatory hearing was unnecessary, and it issued a permit for the facility. Thereupon, petitioners commenced an Article 78 proceeding, contending that DEP's issuance of the conditional negative declaration and DEC's issuance of the air permit were arbitrary and capricious in violation of SEQRA. Respondent DEC and DEP argued that the challenges were time-barred. The Court of Appeals held that the issuance of the conditional negative declaration constituted final agency action for purposes of judicial review of the SEQRA claim. It found that the agency reached a definitive position when the public comment period ended because, at that point, its SEQRA review ended. Moreover, it determined that the issuance of the conditional negative declaration resulted in actual injury, because the declaration essentially gave the developer the ability to proceed with the project without the need to prepare an EIS ( id. at 223).