By: Nathaniel Eisen

On June 27, the New York State Department of Environmental Conservation (“NYSDEC”) adopted the first major revisions to its regulations implementing the State Environmental Quality Review Act (“SEQRA”) in over 20 years. The amendments, which are the culmination of more than six years of outreach, drafting, and revisions, will take effect January 1, 2019.

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. NYSDEC has issued regulations implementing SEQRA, which all state and local agencies must follow, although other agencies can adopt their own supplemental regulations if consistent with NYSDEC’s.

The amendments add to the list of “Type II” actions, which are considered not to have significant adverse impacts and therefore do not require SEQRA review. Many of the new Type II categories reflect an intention to streamline permitting of projects aligned with other state sustainability policies; these include retrofits of existing structures to incorporate green roofs and other green infrastructure; the installation of solar arrays of less than 25 acres on capped landfills, remediated brownfield or state superfund sites or many other buildings; and the rehabilitation and re-use of residential or commercial structures where the new use is permitted by zoning and does not exceed certain size and density thresholds.

The amendments also revise the definitions of certain “Type I” actions, which are presumed to require the preparation of an EIS. The amendments lower the Type I thresholds for the number of units in a proposed residential development, or parking spaces in any proposed development (in towns below a certain size), as NYSDEC determined that the prior thresholds were “rarely triggered … and failed to include some residential developments that should have been classified as Type I.”  NYSDEC also revised the preexisting Type I category covering projects occurring within or substantially contiguous to sites listed on the State or National Registers of Historic Places. The Type I category now applies to sites that have been deemed eligible for listing on the State Register of Historic Places, even if they have not yet been formally listed, but it is also limited to projects that exceed certain size and density thresholds, such that smaller projects occurring within or next to historic sites will no longer be considered Type I actions, although location near such sites (even without reaching a threshold size) is an exception to certain Type II categories.

Further, NYSDEC has made formal “scoping” mandatory for all EISs (except supplemental EISs). Scoping is a process whereby the sponsor and lead agency determine, with input from other involved agencies and the general public, the impact categories to be studied in the EIS and the scope of such analyses. Scoping, which was previously mandatory for most projects in New York City under the City Environmental Quality Review (“CEQR”) rules, is meant to reduce the amount of extraneous information in an EIS and focus attention on the issues that are most likely to arise.

The next step after scoping in the SEQRA process is the preparation of a Draft EIS (“DEIS”) by the sponsor or agency, followed by public comment, followed by the agency’s preparation of a Final EIS (“FEIS”). The amended regulations clarify that when an agency determines a submitted DEIS is inadequate and not yet ready for public review and the sponsor resubmits the DEIS, the agency can only reject the resubmitted DEIS on the basis of the deficiencies which necessitated the resubmission, thus prohibiting piecemeal demands for further analyses that can significantly lengthen the SEQRA process.

The new regulations require in all cases that lead agencies post draft and final scopes and draft and final EISs on a publicly available website, free of charge, for at least one year after all approvals are granted or the action is undertaken, whichever is later.  This reflects and adds to a 2006 statutory change which required internet posting of EISs “unless impracticable.”

Finally, the amended regulations for the first time expressly require an EIS to detail strategies to mitigate a project’s likely contributions to climate change and to adapt to the effects of climate change, where, as with any impact category, they are “relevant and significant.” While NYSDEC previously adopted guidance for its own staff on considering greenhouse gas emissions in an EIS and while vulnerability to flooding is an existing consideration in SEQRA review for projects in a flood plain, these amendments introduce climate change impacts into the implementing regulations that all agencies must follow. Combined with NYSDEC’s recently enacted official estimates of sea-level rise (6 NYCRR 490), and recently proposed Flood Risk Management Guidance, both pursuant to the Community Risk and Resilience Act, this change may result in more consistent and detailed consideration of climate change impacts and mitigation strategies.

The adopted amendments differ from earlier drafts in several ways, among them: adding fewer categories to the Type II list, dropping the requirement of scoping for supplemental EISs, and changing climate change mitigation strategy from a generally mandatory consideration in EISs to one required only where relevant and significant.

For additional information on the SEQRA review process, contact David Paget, Mark Chertok, Elizabeth Knauer, or Adam Stolorow.