New York Issues Revised Proposed Amendments to SEQRA and Requests Public Comment by May 4, 2018

The New York State Department of Environmental Conservation (DEC) announced on June 28, 2018 its adoption of the first major amendments to the State Environmental Quality Review Regulations (SEQR) in more than 20 years. See DEC Press Release: DEC Adopts First Major Update to State’s Environmental Quality Review Regulations in 20 Years. 

The amendments will be posted on the DEC website and in the Environmental Notice Bulletin and the State Register on July 18. They will become effective January 1, 2019. Details on the process leading to this adoption are provided below.

Original updated alert from April 19, 2017, below.

Earlier this month, the New York State Department of Environmental Conservation (DEC) issued proposed revisions to regulations implementing the State Environmental Quality Review Act (SEQRA), at Title 6, Part 617 of the New York Codes, Rules, and Regulations (NYCRR) and to sections of the SEQRA Short and Full Environmental Assessment Forms. The proposed revisions follow the DEC’s original proposed amendments (“2017 proposal,” described below), released in January 2017, and respond to the hundreds of public comments that DEC received following the release of the 2017 proposal.

Type II revisions

The proposed revisions to the 2017 proposal are largely focused on Type II actions, which commenters stressed might have environmental impacts based on the context of the action. DEC reassessed each of its proposed Type II actions and either modified or removed them from consideration. The following will no longer be considered by DEC for inclusion as Type II actions:

• anaerobic digesters at waste water treatment plants (removed based on environmental justice concerns);
• in-fill development (removed based on practical issues anticipated in enactment at the state level);
• co-location of cellular antennas (removed based on concerns relating to visual impacts); and
• small subdivisions (removed after concluding that the inclusion of minor subdivisions as Type II actions would also require DEC to create exceptions that “would overcome the rule”).

In addition, the proposed revisions modify the Type II action for reuse of existing buildings, modify or remove Type II definitions, and add Superfund sites to Type II sites where solar arrays are placed.

Efforts to Streamline EIS Process

The proposed revisions also respond to DEC’s proposal to streamline the Environmental Impact Statement (EIS) process. Public commenters emphasized that DEC’s scoping changes in the 2017 proposal could foreclose public comment following the completion of the final scope. The DEC now proposes to require a project sponsor to include late-filed comments as an appendix to the draft EIS. 

The DEC has also revised its 2017 proposal to update environmental assessment forms with regards to actions “occurring substantially contiguous to properties on the National Register of Historic Places in the Type I list to 25% of any other threshold” in that list, and to include potential properties that may be eligible for that list.

Finally, DEC slightly softened its mandatory scoping requirement. It now mandates scoping for all EISs but makes scoping optional for supplemental EISs.

Next Steps

DEC will accept public comments on the revised proposed SEQRA amendments through May 4, 2018. 

Original alert from January 26, 2017, below.

On January 17, the New York State Department of Environmental Conservation (DEC) released proposed amendments to the State Environmental Quality Review Act (SEQRA) regulations. The proposed amendments represent the first major proposed revisions to SEQRA in more than two decades, and are intended to streamline the environmental review process by modifying the thresholds for actions that are more likely to be subject to further review under SEQRA (Type I actions), expanding the list of actions not subject to further review under SEQRA (Type II actions), and providing clarity on procedures for accepting draft Environmental Impact Statements (EISs). The proposed amendments and related documents are available here. 

Background

The proposed amendments follow recent efforts to modernize SEQRA. In 2012, DEC issued a Notice of Intent to Prepare a Regulatory Impact Statement and Draft Generic Environmental Impact Statement (DEIS). The Notice set forth DEC’s goal to amend SEQRA to improve scoping processes by mandating public scoping of EISs and streamlining the environmental impact assessment process. The 2012 Notice further identified DEC’s goals to lower thresholds for certain Type I listed actions while expanding the number of Type II actions. In October 2013, environmental assessment forms (EAFs) were integrated with web-based geographic information systems (GIS), and the proposed amendments are intended to build on the EAFs and GIS. 

The proposed amendments will update Title 6 of the New York Code of Rules and Regulations (6 NYCRR), Part 617. 

Scope

Of particular significance, the amendments would expand DEC’s statewide Type II list of activities, which are not subject to further review under SEQRA. For example, DEC proposes to include as a Type II action building upgrades to meet “energy codes,” in addition to building and fire codes. DEC reasons that expanding Type II actions to include energy codes will encourage positive efforts to maximize reuse of existing buildings and infrastructure. 

Along the same vein, DEC proposes to add “Green Infrastructure” to the SEQRA definitions and Green Infrastructure retrofitting practices to the Type II list. It defines Green Infrastructure to include “practices that manage stormwater through infiltration, evapotranspiration and reuse such as the use of permeable pavement; bio-retention; green roofs and green walls; tree pits, stormwater planters, rain gardens, vegetated swales, urban forestry programs; downspout disconnection; and stormwater harvesting and reuse.” Green Infrastructure practices fall under the Type II exemption from further EIS review when used for retrofitting purposes, which DEC reasons will create opportunities for increased energy efficiency and sustainable building techniques while adding little to no additional site disturbance. 

Of particular note, DEC also proposes to include installations of five megawatts or less of solar energy arrays on properties that have already been disturbed and on existing structures as Type II actions. This Type II action would encompass a broad range of properties – including landfills, brownfields, waste-water treatment facilities, and sites zoned for industrial use – and structures – including residential and commercial parking facilities such as lots and garages. 

The proposed Type II additions are closely aligned with New York State’s State Energy Plan (SEP), which sets forth aggressive renewable energy policy goals. In 2015, Governor Cuomo announced the Renewing the Energy Vision, an initiative that 50% of the state’s electricity be provided by renewable resources by 2030. Governor Cuomo also directed the establishment of a Clean Energy Standard, which aims to reduce carbon emissions 40% by 2030. DEC’s rationale for these additions to the Type II list relies in part on reference to REV and SEP. 

Next Steps 

A public hearing will be held in Albany on March 31, 2017, and the comment period for the proposed amendments will close May 19, 2017. 

Beveridge & Diamond's NEPA and Historic Preservation Reviews practice group has been involved with NEPA and state analogues (like New York’s SEQRA and California’s CEQA) since the earliest implementation of these statutes. We help clients navigate the environmental review and permitting process to help them build their projects. For more information on these developments, please contact the authors.