In late June, the New York State Department of Environmental Conservation (DEC) promulgated long-awaited final revisions to its regulations detailing the standards and procedures for New York’s “Little NEPA” environmental quality review statute, the State Environmental Quality Review Act (SEQRA). This modest reform effort, which began with stakeholder outreach in 2012, will now govern all environmental reviews, including Environmental Impact Statements and Environmental Assessments, conducted in New York State starting in 2019.
The final rule largely tracks with the rule proposed in early 2017 (addressed more fully in our prior blog post, available here), including the reduction of the threshold for Type I actions, the imposition of mandatory scoping procedures prior to the preparation of an environmental impact statements (EIS), and the creation of new limiting factors to facilitate a faster EIS process. The final rule also retains many of the added exemptions for green infrastructure, energy, and reuse of existing facilities. There were, however, several potentially significant changes that, unfortunately, narrowed the scope of the amendments.
Changes to Proposed Type II Additions
The greatest change to the regulations relates to the creation of new SEQRA exempt “Type II” projects. Type II actions are actions that the DEC has determined do not pose a risk of significant adverse environmental impacts, and therefore do not require further SEQRA review.
First, the final rule eliminated the proposed rule’s exemption for redevelopment projects on “previously disturbed sites” in municipal centers, which was aimed at encouraging “smart growth” projects by exempting them from SEQRA’s requirements. This type of in-fill development was eliminated due to perceived difficulty in statewide application of the definition of what constitutes municipal centers, and was determined by the DEC to be best addressed at the municipal level (other government agencies subject to SEQRA can adopt their own Type II lists, but rarely do so). The DEC also removed anaerobic digesters associated with sewage treatment plants from the Type II list due to concerns over the potential impact of such facilities in dense urban areas. Finally, the DEC eliminated the proposed Type II treatment of rule minor subdivisions as Type II. As a result, the DEC significantly cut back its prior attempt in the draft regulations to streamline SEQRA by enhancing the list of SEQRA-exempt activities. Those activities, like myriad other discretionary government actions, will be treated as “unlisted actions,” subject to an assessment to determine whether an EIS is required.
In addition, the final rule amended some of the language surrounding proposed Type II projects for energy generation, easing some of the restrictions on placement of solar panels on superfund, brownfield, landfill, wastewater treatment, and industrial sites, as well as on existing structures that are not listed or eligible to be listed as historic sites. The final rule also altered the size threshold for solar, switching from a generating capacity restriction of five megawatts to an area restriction of 25 acres. These changes, recognizing New York’s renewable energy goals, serve to increase solar energy availability and decrease barriers to further growth.
Requirement to Consider Late-Filed Comments on the Scope
The department also slightly altered the requirements of the scoping process in response to public comment, requiring a lead agency to consider and include late-submitted comments on the scope in an appendix to the draft EIS. [6 NYCRR 617.8(g) of the final rule]. This requirement applies only to potentially important or relevant information submitted after the comment period with a statement indicating: (i) the nature of the information that should be considered, (ii) why the information relates to a potential significant impact, and (iii) why the information was not identified during scoping and why it should be considered during the review. Upon receiving such late submitted comments, the agency is required either to incorporate the information if truly significant or to include the information as an appendix to the draft EIS. Thus, the final regulations water down another aim of the revision effort, providing certainty to applicants and project sponsors on what must be included in an EIS for it to be deemed a complete assessment of potential adverse impacts. The DEC’s revision attempts to thread the needle somewhat by limiting the requirement to consider late comments to the preparation of an appendix rather than requiring a full amendment of the draft EIS; thus, the proposed rule seeks to ensure all public input is disclosed, while allowing a project sponsor to complete the environmental review process without needing to continuously amend the document to account for an endless stream of late-filed comments.
The length of time required to finalize these new regulations—which were formally adopted by the DEC June 27, 2018, and will become effective January 1, 2019—is proof that changing New York’s environmental review statute is never an easy endeavor. The removal of a number of provisions that sought to streamline SEQRA review ensures that the process will continue to be lengthy and complex for applicants and project sponsors.