Proposed SEQRA Changes Streamline Process, Modify Action Lists
Authors: Johanna Duffy, CWB
A set of amendments are currently proposed by the New York State Department of Environmental Conservation (NYSDEC) to reflect their experiences with the SEQRA over the last two decades since the last major revision process. According to the NYSDEC, the main objective of the proposed amendments is to streamline the environmental quality review process without “sacrificing meaningful environmental review.” The State Environmental Quality Review Act (SEQRA) was enacted into law on August 1, 1975. Significant amendments have been made to the SEQRA since; however no revisions to Part 617 of Title 6 of the Official Compilation of Codes, Rules, and Regulations of the State of New York (6 NYCRR Part 617) have been made since 1995. This proposed update process builds on the modernization of the short and long environmental assessment forms (EAFs) that became effective in October 2013. Whisperings of more significant revisions to the SEQRA regulations themselves were passed around during that time, though no specifics were available or made public. The NYSDEC views the proposed amendments to Part 617, combined with the new EAFs, workbooks, and interactive EAF Mapper, as part of a larger initiative to propel the SEQRA into the 21st Century.
The proposed amendments to the SEQRA regulations attempt to both streamline and strengthen the NYSDEC’s environmental review process by expanding the statewide Type II action list (actions not subject to further review), modifying certain thresholds in the Type I action list, making scoping of an Environmental Impact Statement (EIS) mandatory rather than optional, and making the acceptance procedures for draft EISs more consistent and better defined. Amendments are also proposed to make the filing of scoping documents on the internet a requirement and to encourage the electronic filing of Draft and Final EISs, to the extent practicable. New definitions for “Green Infrastructure”, “Minor Subdivision”, “Municipal Center”, “Replacement in Kind”, and “Substantially Contiguous”, and revised definitions for “Negative Declaration” and “Positive Declaration”, are also included in the proposed amendments.
Arguably, the most noteworthy change will be the expansion of the Type II action list. Often agencies have a difficult time determining if proposed actions fit within the specified SEQRA action categories, and typically most projects are classified as Unlisted actions, even if their environmental impacts are very minimal. The expanded Type II list is proposed as an attempt to take the guess work out of determining the significance of certain projects. Notable Type II actions that the NYSDEC is currently proposing to add include:
- Installation of fiber-optic or other broadband cable technology in existing highway or utility rights of way;
- Retrofit of an existing structure or facility to incorporate green infrastructure;
- Installing 5 MW or less of solar arrays on a sanitary landfill, brownfield site that has received a brownfield site clean-up order certificate of completion (under 6 NYCRR 375-.3.9), waste-water treatment facilities, sites zoned for industrial use or installation of 5 MW or less of solar canopies at or above residential and commercial parking facilities (lots or parking garages);
- Dedication of parkland;
- Acquisition of less than one hundred acres of land for parkland;
- Construction and operation of an anaerobic digester, at a publically-owned wastewater treatment facility or a municipal solid waste landfill, provided the digester has a feedstock capacity of less than 150 tons per day, and only produces Class A digestate that is beneficially used or biogas to generate electricity or to make vehicle fuel, or both; and
- In a city, town or village with an adopted zoning law or ordinance, reuse of a commercial or residential structure where the activity is consistent with the current zoning law or ordinance.
Additional Type II actions cover solar energy arrays on existing structures, minor subdivisions, redevelopment on disturbed sites, brownfield site clean-up agreements, and the sale and conveyance of real property by public auction. Overall, 18 new actions are proposed to be added to the Type II action list. Proposed revisions to the Type I action list primarily involve modifications to existing language, most commonly in the form of threshold reductions.
So what does this mean to B&L’s clients?
The proposed changes should ease the burden that some clients feel is imposed by the current SEQR process and help clarify the ambiguities that sometimes arise when trying to classify an action. Overall, the time and effort required to wade through the SEQR process is not anticipated to significantly change, but the hope is that the proposed amendments result in the creation of less headaches along the way.
If you are interested in obtaining more detailed information on the NYSDEC’s proposed changes, a DRAFT Generic Environmental Impact Statement (GEIS) on the Proposed Amendments to the State Environmental Quality Review Act (SEQR) Regulations has been issued and was formally accepted on January 20, 2017. This document is available for public review with a deadline for comments by May 19, 2017. This GEIS and other documents summarizing the update process and the proposed amendments can be found at http://www.dec.ny.gov/permits/83389.html.
B&L’s experienced SEQRA staff is available to assist you with interpreting the new regulations or in answering any questions you may have concerning the SEQR process.