To ensure that New York state agencies and local governments can meaningfully assess the environmental impact of proposed projects, the State Environmental Quality Review regulations received substantial amendments this year. This Legal Alert provides an overview of the key SEQR amendments.
On January 1, 2019, amendments to the State Environmental Quality Review (“SEQR”) regulations, codified at 6 N.Y.C.R.R. Part 617 (the “SEQR Amendments”) became effective. The Department of Environmental Conservation (“DEC”), in its Findings Statement, stated that the purpose of the SEQR Amendments is to “streamline the SEQR process without sacrificing meaningful environmental review.” The DEC website lists the Findings Statement and Final Express Terms of the SEQR Amendments. Highlights of the SEQR Amendments are listed below.
Defining “green infrastructure”
1. The SEQR Amendments add a definition for “green infrastructure,” which includes stormwater management practices, green roofs and walls, rain gardens, and urban forestry programs (see SEQR Amendment § 617.2(r)). The term “green infrastructure” would be added to the list of Type II actions at Section 617.5(3). This means that retrofitting an existing structure to incorporate “green infrastructure” is not subject to SEQR review (see SEQR Amendment § 617.5(c)(3)).
2. Some of the threshold limitations for Type I actions in Section 617.4 have also been altered in the SEQR Amendments. As a result, the thresholds that may trigger a SEQR review as a Type I action have been reduced for projects that previously have been considered Unlisted Actions. A Type I action would now include the following:
a. Connecting 200 units rather than 250 units to existing community or public water and sewer in a municipality with 150,000 persons or less;
b. Connecting 500 units rather than 1,000 units to existing community or public water and sewer in a municipality with a population greater than 150,000, but less than 1,000,000;
c. Connecting 1,000 units rather than 2,500 units to existing community or public water and sewer in a municipality with a population greater than 1,000,000;
d. Parking for 500 vehicles in a municipality with a population of 150,000 or less
e. Parking for 1,000 vehicles in a municipality with a population of 150,000 or more; and
f. Any Unlisted Action that exceeds 25% of any threshold detailed in § 617.4 if it occurs “wholly, partially within, or substantially contiguous to any historic building, structure, facility, site, or district, or prehistoric site that is listed on the National Register of Historic Places.”
3. The SEQR Amendments add the following activities to the list of Type II actions in Section 617.5:
a. Modifications to existing buildings to meet energy codes, unless modifications exceed threshold detailed in § 617;
b. Retrofit of an existing structure and its appurtenant areas to incorporate green infrastructure;
c. Installation of telecommunications cables in existing highway or utility rights of way utilizing trenchless burial or aerial placement on existing poles;
d. Construction or expansion of a 1,2, or 3 family residence modified to include the conveyance of land in connection therewith;
e. Installation of solar energy arrays on the following sites:
i. a closed landfill;
ii. a brownfield site that has received a Certificate of Completion (“COC”);
iii. a site which is subject of an inactive hazardous waste disposal site full liability release or COC, where the DEC has determined an allowable use for a particular site is commercial or industrial;
iv. wastewater treatment facility
v. a site zoned for industrial use; or
vi. a parking lot or parking garage
f. Installation of solar energy arrays on an existing structure that is not:
i. listed on the National or State Register of Historic Places;
ii. located within a district listed in the National or State Register of Historic Places;
iii. eligible for listing on the State Register of Historic Places pursuant to §§ 14.07 or 14.09 of the Parks, Recreation and Historic Preservation Law;
iv. within a district be eligible for listing on the State Register of Historic Places pursuant to §§ 14.07 or 14.09 of the Parks, Recreation and Historic Preservation Law;
g. Re-use of a commercial or residential structure where the activity is consistent with the current zoning law or ordinance of a municipality;
h. Recommendations of a county or regional planning board or agency pursuant to General Municipal Law §§ 239-m or 239-n;
i. Acquisition of 25 acres or less for parkland, dedication of land for parkland that was previously acquired, or acquisition of a conservation easement;
j. Sale of property by public auction in accordance with Article 11 of the Real Property Tax Law; and
k. Construction and operation of anaerobic digesters at publically-owned wastewater treatment facilities or municipal solid waste landfills, provided that certain criteria are satisfied.
Scoping now required
4. Scoping is now required for all Environmental Impact Statements (“EIS”), other than a supplemental EIS (see SEQR Amendments § 617.8(a)). The SEQR Amendments now require that all draft EISs contain a brief description of issues that were either considered during the review of the EAF or raised during the Scoping, but determined to be neither relevant nor environmentally significant and the reasons why they were not included in the final scope. (see SEQR Amendments § 617.8(e)(7)). The Project Sponsor is now required to incorporate any eligible late-filed comments into the draft EIS, either directly into the document or attached as an appendix to the draft EIS (see SEQR Amendments § 617.8(g)).
5. Section 617.9(a)(2), regarding EIS procedures, was amended to provide that a draft EIS is adequate “with respect to scope and content for the purpose of commencing public review if it meets the requirements of the final written scope . . . and provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.” The adequacy of a resubmitted draft EIS will be determined “solely on the written list of deficiencies provided by the lead agency following the previous review, unless changes are proposed for the project, there is newly discovered information, or there is a change in circumstances related to the project.” (see SEQR Amendments § 617.9(a)(2)(ii)). This change is intended to address concerns relating to multiple rounds of deficiency notices by lead agencies. Supplemental EISs are subject to all the procedures required by Section 617.9(a), except that additional scoping will not be required (see SEQR Amendments § 617.9(a)(7)(iii)). A draft EIS must now identify and discuss relevant “measures to avoid or reduce both an action’s impact on climate change and associated impacts due to the effects of climate change such as sea level rise and flooding.” (see SEQR Amendments § 617.9(b)(5)(iii)).
6. According to Section § 617.12, either an electronic or printed copy of the EIS can be provided to the DEC and local library (see SEQR Amendments § 617.12(b)). Draft and final scopes must be noticed in the Environmental Notice Bulletin (“ENB”) by the lead agency (see SEQR Amendments § 617.12(c)(1)). Notices can be sent via email to the address on the ENB’s webpage or by mail to 625 Broadway, Albany, New York 12233-1750. The SEQR Amendments now require the lead agency to publish on a “publically available website” all drafts and final scopes, as well as, all drafts and final EISs. The posting must be available for at least one (1) year following the issuances of all necessary federal, state and local permits, or one (1) year after the action is funded or undertaken, whichever is later. (see SEQR Amendments § 617.12(c)(5)).
7. Section 617.20 provides model Environmental Assessment Forms which may be used to satisfy Part 617 and may be modified in accordance with Sections 617.2(m) and 617.14.
The DEC initially noticed the amendments on February 8, 2017, with the comment period continuing through May 19, 2017. Because of the many comments received during this period, DEC modified its proposal on April 4, 2018 and extended the comment period through May 11, 2018. Comments were responded to in the Final Generic Environmental Impact Statement accepted by the DEC on June 13, 2018. DEC issued the Findings Statement and formally adopted the SEQR Amendments on June 27, 2018.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.