By: Jonathan Kalmuss-Katz

On January 23, 2017, the New York State Department of Environmental Conservation (“NYSDEC”) proposed the most significant changes to its regulations implementing the State Environmental Quality Review Act (“SEQRA”) in more than twenty years.  The proposal aims to streamline the environmental impact review process in New York, particularly for projects that advance certain public policy goals, and to update the regulations based on NYSDEC and stakeholder experiences since the last major amendments in 1995.

SEQRA requires state and local agencies to consider the potential environmental impacts of their proposed decisions before funding, approving, or undertaking a discretionary action, and to prepare an Environmental Impact Statement (“EIS”) if the action may result in any significant adverse environmental impacts.  In 2011, NYSDEC commenced a series of meetings with government agencies, non-profit organizations, and other stakeholders concerning potential changes to the SEQRA process.  NYSDEC’s proposed amendments to its SEQRA regulations arose out of those meetings.

Among other changes, NYSDEC proposes expanding the categories of “Type II” actions that have been predetermined not to result in significant adverse impacts and thus require no additional SEQRA review.  Several of the new Type II actions aim to reduce environmental review requirements for “environmentally compatible development” and other public benefits, including:

• Installation of 5 megawatts or less of solar energy arrays on certain types of sites;
• Retrofit of existing structures or facilities to incorporate “green infrastructure practices”;
• Infill development on a previously disturbed site in the “municipal center” of a city, town or Village, within certain size and location limits;
• Dedication of parkland and the acquisition of less than 100 acres of land to be dedicated as parkland;
• Reuse of existing commercial or residential structures in compliance with applicable zoning;
• Brownfield cleanup agreements, “provided that design and implementation of the remedy do not commit the Department or any other agency to specific future uses or actions or prevent an evaluation of a reasonable range of alternative future uses of or actions;” and
• Installation of fiber-optic or broadband cable in highway or utility rights-of-way.

The proposed regulations would also revise NYSDEC’s list of Type I actions, which are presumed to have significant adverse environmental impacts and which require the preparation of a Full Environmental Assessment Form to determine whether an EIS is needed.  The regulations would reduce the size thresholds for Type I residential developments – changing, for instance, the 2,500-unit threshold in municipalities with at least 1,000,000 residents to 1,000 units – based upon NYSDEC’s finding that “[t]he current thresholds are rarely triggered … because they were set far too high and fail to include some truly large-scale development projects that should be classified as Type I.”  NYSDEC also would lower the existing Type I parking space threshold from 1,000 vehicles to 500 vehicles in municipalities with 150,000 residents or less.  Finally, NYSDEC would revise the Type I category for actions occurring within or substantially contiguous to historic properties or districts.  That category would be expanded to include properties that have been determined eligible for (as opposed to formally listed on) the State Register of Historic Places, but also limited by a new requirement that the action exceed 25 percent of any numerical threshold enumerated for other Type I categories (which relate to building size and density, the number of parking spaces, the amount of ground or surface water consumption, etc.).  This revision is intended to prevent minor actions occurring within or contiguous to a historic resource from triggering SEQRA’s Type I requirements.

In addition to the Type I and Type II changes, the proposed regulations would require the public scoping of a draft EIS, a process that is currently discretionary outside New York City, where it is mandated by the City Environmental Quality Review (“CEQR”) rules.  Scoping is used to identify the issues to be addressed in an EIS, including the significant adverse impacts requiring review, the content and level of detail of the analyses, and the range of alternatives and mitigation measures to be considered.  The proposed scoping requirement is intended to focus EISs on identified areas of significant adverse impacts, in response to concerns that past EISs have “too often become defensive with inordinate stress on discussion of impacts that are trivial or not significant.”

The proposed regulations also aim to shorten the SEQRA review process by providing more explicit directions concerning when a draft EIS should be accepted as adequate for public review.  In circumstances where a draft EIS has been found inadequate, the proposed regulations would require the lead agency to review any resubmitted draft “based solely on the written list of deficiencies provided … following the previous review,” as opposed to raising new objections.

With respect to the analysis of mitigation measures in an EIS, the proposed regulations require a discussion of “measures to avoid or reduce both an action’s environmental impacts and vulnerability from the effects of climate change such as sea level rise and flooding.”  NYSDEC has previously issued guidance on the consideration of climate change in environmental impact statements, but the proposal would for the first time add such requirements to SEQRA’s implementing regulations.

The proposed regulations would also require lead agencies to cause all draft and final EIS scopes – and, to the extent practicable, all draft and final EISs – to be published on a publicly available website that is free of charge.  The online posting of draft and final EIS, where practicable, is already required under state law, so the primary impact of this regulatory change would be to expand the posting requirements to scoping documents.

Comments on the proposed regulations may be submitted to seqra617@dec.ny.gov through May 19, 2017.  For additional information on NYSDEC’s proposal and the SEQRA review process, contact Jonathan Kalmuss-Katz or Adam Stolorow.