On June 20, 2018, the New York State Department of Environmental Conservation (“DEC”) released two draft flood risk management guidance documents intended to advise New York state agencies on how to incorporate the consideration of future climate risks, including risks of sea-level rise, storm surge, and flooding, into existing regulatory processes. The non-binding guidance is required under the Community Risk and Resiliency Act (“CRRA”), a 2014 law that requires consideration of climate change impacts across a broad range of permitting programs, land use plans, and other state and local initiatives.

The lengthier of the two documents is the draft Flood Risk Management Guidance (the “Guidance”). The DEC permits expressly covered by the CRRA, and thus the Guidance, include those for tidal wetlands; freshwater wetlands; Coastal Erosion Hazard Areas; the siting of hazardous waste transportation, storage and distribution facilities; and the siting of petroleum bulk storage facilities and oil and gas wells. The Guidance focuses on project siting and is intended to supplement existing requirements, including current state and local building codes and FEMA’s National Flood Insurance requirements. The Guidance notes, “within the context of regulatory programs affected by CRRA, the recommended flood risk management guidelines are intended primarily for consideration in determination of the suitable location for construction of a proposed structure or other regulated activity, given future physical risks, within a permit’s jurisdictional area.” However, the Guidance states that DEC anticipates that its concepts will inform regulatory modifications concerning floodplain management and the New York State Uniform Fire Prevention and Building Code in the future.  Thus, the proposed guidelines for siting structures in flood-prone areas could be adopted into codes applying to structures that do not require DEC permits, and without the flexibility of application which the Guidance recommends, as described further below.

The Guidance relies on the Federal Flood Risk Management Standard, which redefined the term “floodplain” beyond the current 100-year floodplain (the floodplain of a flood having a one percent annual chance of being equaled or exceeded), which is the definition used in existing State regulations.  The Federal Flood Management Standard provided a more expansive definition of floodplain for the purpose of federal permitting decisions, but was revoked by President Trump on August 15, 2017.  The draft state Guidance of floodplain into State permitting decisions, proposing three “guidelines” to define flood-hazard areas:

• Guideline 1: The elevation and horizontal flood-hazard area that result from adding two feet (three feet for critical facilities) of freeboard to the Base Flood Elevation (i.e., the elevation of the one-percent annual chance flood) and extending this level (transversely to the direction of flow in riverine situations) to its intersection with the ground. This concept is illustrated below (image taken from the Guidance).

• Guideline 2: The vertical flood elevation and corresponding horizontal floodplain subject to flooding from the 0.2-percent annual chance flood, otherwise known as the 500-year flood.
• Guideline 3: The elevation determined by a climate-informed science approach in which adequate, actionable science is available.
  • This approach starts with the Base Flood Elevation, adds additional elevation based on projected sea-level rise, enhanced storm surge, or future flooding (sea level rise projections were the subject of 2017 regulations also promulgated under the CRRA), and then adds the standard freeboard requirement of 2 feet (or three feet for critical facilities). This concept is illustrated below (image taken from the Guidance).

Guidance identifies types of structures for which each Guideline is applicable.  With respect to Guideline 2, which incorporates projected future flood levels, it also identifies which projection of future sea level rise or flood elevations should be used (the State regulations include five different projections, ranging from low to high, for three different tidal regions).  It recommends that permit applicants “be required to demonstrate consideration of the highest flood risk management guidelines applicable ,” to account for the worst-case scenario in which increased climate change-related risks are assumed. The application of the guidelines to some of the most common structures subject to DEC permits are highlighted below; there are separate guidelines for, inter alia, water supply and wastewater treatment plants, transportation infrastructure, bridges, and culverts.

The Guidance states that “Due to the uncertainties inherent in estimating true current flood risk, likely changes associated with changing climatic conditions, and the potential consequences for public health, safety and welfare, this guidance recommends that the highest (i.e., most protective) of the applicable flood-risk management guidelines be applied where practical and cost-effective.”  Therefore, according to the Guidance, avoiding construction in the areas defined by the applicable guidelines “is generally preferable.”

The guidelines set forth in the Guidance, if applied rigorously, could put onerous burdens on applicants seeking permits for waterfront development, or could effectively preclude some waterfront development.  For example, the flood hazard area for a large residential development in New York City, assuming a useful life of 80 years, would be five feet above the Base Flood Elevation.  Moreover, not only does the Guidance greatly increase the lateral extent and vertical elevation of flood hazard areas, but it also recommends that no development should occur within them. This is more stringent than FEMA requirements adopted into current building codes, which allow development within flood hazard areas with the inclusion of protective features such as elevated first floors or dry floodproofing.   The Guidance recognizes, however, that “application of the highest flood-risk management guideline is not warranted in all cases for reasons of feasibility, cost, funding eligibility, risk tolerance, environmental effects, etc.”  Thus, the effect the Guidance will have on the actual siting of projects will be determined by how all of the factors are balanced in specific cases.

NYSDEC also issued its draft Guidance for Smart Growth Public Infrastructure Assessment (“Smart Growth Guidance”), which applies to state public infrastructure agencies required under the Smart Growth Public Infrastructure Policy Act, as modified by the CRRA, to prepare a Smart Growth Impact Statement prior to making any commitment to acquire, construct, or finance public infrastructure projects.  The Smart Growth Impact Assessment must demonstrate that the project satisfies, to the extent practicable, certain smart growth criteria. The Smart Growth Guidance provides general principles for infrastructure agencies to apply during the Smart Growth Impact Assessment process. Examples of such principles include the use of recommendations and guidelines set forth in the Flood Risk Management Guidance; the siting of public infrastructure projects outside of flood-hazard areas where practicable; considering flooding potential when choosing building materials, design, and layout; consideration of effects on adjacent or downstream areas; and collaboration with stakeholders, the public, and other agencies.

NYSDEC is accepting public comments on the draft guidance documents until August 20, 2018. NYSDEC is holding public information and comment sessions in July, including a July 19 meeting in Albany that will be webcast. Click here and scroll to the bottom for more information about information sessions and public comments.

For more information about the Community Risk and Resiliency Act, or about New York permitting or land use issues involving consideration of climate change, please contact Elizabeth Knauer.