NYSDEC Adopts Update to SEQR Regulations

The New York State Department of Environmental Conservation (“DEC”) announced on June 28, 2018 that it had adopted a rulemaking package directed at updating its regulations relating to the State Environmental Quality Review (“SEQR”). The updates – DEC’s first to its SEQR regulations in more than two decades – are the product of an effort that began in February 2017 with the DEC’s filing of an initial notice and, following a series of public comment periods and subsequent revisions, culminated with its publication of the Final Generic Environmental Impact Statement (“FGEIS”) and revised text of the regulations.

As revised, the regulations become effective on January 1, 2019 and apply to all actions for which a determination of significance has not been made by January 1, 2019. For projects that receive a determination of significance made prior to January 1, 2019, the existing SEQR regulations (which originally took effect in 1996) will continue to apply.

Once effective, the revised regulations could have a significant impact on SEQR’s applicability to future development projects. The new regulations contemplate a number of mechanical changes to the environmental review process itself, including mandatory scoping of environmental impact statements, changes to the required content of environmental impact statements (“EIS”), as well as new requirements relating to the preparation and filing environmental impact statements. Perhaps most significantly, however, the updated regulations will (1) expand the list of actions constituting “Type II” actions under SEQR, and (2) lower the numeric thresholds for certain types of actions constituting “Type I” actions.

1. Type II Actions:

Type II actions are those classes of actions which, because they have been categorically determined not to have significant impacts on the environment, are exempt from review under SEQR. Amongst the actions DEC has added to the list of Type II actions are:

• Replacement, rehabilitation, or reconstruction to comply with energy codes, and which does not exceed any Type I threshold;
• Retrofits of existing structures to incorporate “green infrastructure” (a term which is newly defined);
• Installation of telecommunications cables in existing highway or utility rights of way;
• Installation of solar energy arrays involving less than 25 acres on closed landfills, cleaned-up brownfield sites, wastewater treatment facilities, sites zoned for industrial use, parking lots, and existing structures (subject in the case of existing structures to certain qualifications protecting historic structures and districts);
• Lot line adjustments;
• Reuse of residential or commercial structures (or mixed use) where same is permitted under local zoning, including by special use permit, and which does not exceed any Type I threshold;
• Recommendations of a county or regional planning board or agency pursuant to the General Municipal Law sections 239-m or 239-n;
• Acquisition and dedication of 25 acres or less of parklands and conservation easements; and
• Construction and use of anaerobic digesters at operating publically-owned landfills.

For those undertaking projects falling into one of the above categories, the revised regulations are great news and should remove concern that such projects could generate obligations under SEQR.

Finally, one addition to the list of Type II actions that was part of the original rule proposal but later deleted from the final regulation would have exempted subdivisions defined as minor under a municipality’s adopted subdivision regulations, or subdivision of four or fewer lots, whichever is less, that involve ten acres or less, provided the subdivision was not part of a larger tract subdivided within the previous five years and is not within or substantially contiguous to a designated critical environmental area. The DEC received numerous comments on this proposal, and ultimately opted against including it out of concern that multiple, successive minor subdivisions of the same lands could evade SEQR review. Noting that local laws may have “look back” provisions to guard against this, which some municipalities have difficulty tracking, the DEC concluded that such a Type II designation would be better adopted at the municipal level. As a result, minor subdivisions will remain Unlisted actions in the SEQRA regulations.

2. Type I Actions:

In addition to expanding the list of Type II actions, the DEC’s revised regulations reflect lower thresholds for certain categories of Type I actions which may have otherwise constituted “Unlisted” actions. Type I actions under SEQR are those classes of actions deemed more likely to have a significant adverse impact on the environment and which therefore require completion of a full Environmental Assessment Form and coordinated review among all involved agencies. Some actions—though not otherwise listed as Type I actions—may become Type I actions if they exceed certain numerical thresholds set forth in the regulations. Under the DEC’s revised regulations, certain of these numeric thresholds have been reduced substantially, including those relating to the number of newly constructed residential units to be connected to existing community or public water and sewerage systems (including sewage treatment works). The threshold is reduced to 200 units [from 250] in a city, village or town having a population of 150,000 persons or less, 500 units [from 1,000] in a city, village, or town having a population of more than 150,000 persons but less than one million persons, and 1,000 units [from 2,500] in a city, village or town having a population of one million or more persons. Also added as a Type I action is parking for 500 vehicles in a city, village, or town having a population of 150,000 persons or less, or 1,000 vehicles in a city, village, or town having a population of more than 150,000 persons. Such changes will increase the number of projects explicitly subject to Type I review. For those hoping to develop large scale projects, particularly residential projects and projects generating large parking obligations, it will be important to understand when and where these modified thresholds apply and how they might impact the scope of environmental review.

The revised regulations also loosen an existing provision under which any Unlisted action, other than one designed for preservation of a facility or site, is deemed to be a Type I action if within or substantially contiguous to, any historic building, structure, facility, site, or district or prehistoric site which is listed on the National or State Register of Historic Places. The revised regulations elevate such projects to Type I status only if they exceed 25% of any Type I threshold, and provide that a determination of eligibility for listing (rather than being proposed for a recommendation for nomination) is sufficient to trigger elevation if the 25% threshold is met.

3. Scoping:

The revised regulations require scoping whenever an EIS will be required, except for a supplemental EIS. Previously, scoping was optional. In addition, the lead agency no longer has the ability to waive preparation of an environmental assessment form (“EAF”) in circumstances where an EIS will be required, and treat the draft EIS as an EAF for purposes of determining significance. Instead, an EAF must be prepared and submitted, and the issues considered in the review of the EAF must be included in the scope, or reasons must be provided as to why those issues were not included. Additionally, scoping must encompass analysis of potentially significant issues identified in the Part 3 of the EAF (this replaces a reference to the positive declaration). If involved agencies specify a need for environmental analysis, the lead agency must include such informational needs in the final scope if they are reasonable. If issues are raised after the final scope is adopted, the project sponsor must include comments submitted to the lead agency which outline the issue and its importance and relevance, either in the EIS itself or as an appendix.

The revised regulations contain explicit language that an EIS is adequate to commence public review if it meets the requirements of the final written scope, the SEQRA regulations, and provides the public and involved agencies with the necessary information to evaluate proposed impacts, alternatives and mitigation measures. Also, where a draft EIS is rejected as inadequate, the resubmitted draft EIS must be reviewed solely based on the list of deficiencies provided in the initial review.

4. EIS Substantive Content:

Substantively, the revised regulations require that a draft EIS identify and discuss, where relevant and significant, the use of renewable energy sources, and measures to avoid or reduce both an action’s environmental impacts and vulnerability from the effects of climate change such as sea level rise and flooding.

5. Procedural Requirements:

The revised regulations require that the lead agency publish, or cause to be published, on a publicly available website, the draft and final scope and the draft and final EIS, and that the material remain posted until one year after all permits have been issued or after the action is funded or undertaken, whichever is later.

The revised regulations also include an express right of the applicant to receive copies of invoices for costs incurred by consultants for the lead agency in preparing or reviewing an EIS.

The original rule proposal, hearing transcripts and other documents concerning the rule adoption process are available here.

As the revised regulations are rolled out, attorneys in the Gibbons Real Property Department will continue to monitor their impact on the development landscape and will remain equipped to assist clients in navigating all phases of the development process.