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New York Proposes First Major Amendments to SEQRA in Over Two Decades, Driven In Part by Statewide Energy Initiatives

Authors: Michael G. Murphy, Sarah A. Kettenmann
Beveridge & Diamond, P.C., January 26, 2017

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On January 17, the New York State Department of Environmental Conservation (DEC) released proposed amendments to the State Environmental Quality Review Act (SEQRA) regulations. The proposed amendments represent the first major proposed revisions to SEQRA in more than two decades, and are intended to streamline the environmental review process by modifying the thresholds for actions that are more likely to be subject to further review under SEQRA (Type I actions), expanding the list of actions not subject to further review under SEQRA (Type II actions), and providing clarity on procedures for accepting draft Environmental Impact Statements (EISs). The proposed amendments and related documents are available here

Background  

The proposed amendments follow recent efforts to modernize SEQRA. In 2012, DEC issued a Notice of Intent to Prepare a Regulatory Impact Statement and Draft Generic Environmental Impact Statement (DEIS). The Notice set forth DEC’s goal to amend SEQRA to improve scoping processes by mandating public scoping of EISs and streamlining the environmental impact assessment process.  The 2012 Notice further identified DEC’s goals to lower thresholds for certain Type I listed actions while expanding the number of Type II actions.  In October 2013, environmental assessment forms (EAFs) were integrated with web-based geographic information systems (GIS), and the proposed amendments are intended to build on the EAFs and GIS. 

The proposed amendments will update Title 6 of the New York Code of Rules and Regulations (6 NYCRR), Part 617. 

Scope  

Of particular significance, the amendments would expand DEC’s statewide Type II list of activities, which are not subject to further review under SEQRA. For example, DEC proposes to include as a Type II action building upgrades to meet “energy codes,” in addition to building and fire codes.  DEC reasons that expanding Type II actions to include energy codes will encourage positive efforts to maximize reuse of existing buildings and infrastructure. 

Along the same vein, DEC proposes to add “Green Infrastructure” to the SEQRA definitions and Green Infrastructure retrofitting practices to the Type II list. It defines Green Infrastructure to include “practices that manage stormwater through infiltration, evapotranspiration and reuse such as the use of permeable pavement; bio-retention; green roofs and green walls; tree pits, stormwater planters, rain gardens, vegetated swales, urban forestry programs; downspout disconnection; and stormwater harvesting and reuse.” Green Infrastructure practices fall under the Type II exemption from further EIS review when used for retrofitting purposes, which DEC reasons will create opportunities for increased energy efficiency and sustainable building techniques while adding little to no additional site disturbance. 

Of particular note, DEC also proposes to include installations of five megawatts or less of solar energy arrays on properties that have already been disturbed and on existing structures as Type II actions. This Type II action would encompass a broad range of properties – including landfills, brownfields, waste-water treatment facilities, and sites zoned for industrial use – and structures – including residential and commercial parking facilities such as lots and garages. 

The proposed Type II additions are closely aligned with New York State’s State Energy Plan (SEP), which sets forth aggressive renewable energy policy goals. In 2015, Governor Cuomo announced the Renewing the Energy Vision, an initiative that 50% of the state’s electricity be provided by renewable resources by 2030. Governor Cuomo also directed the establishment of a Clean Energy Standard, which aims to reduce carbon emissions 40% by 2030.  DEC’s rationale for these additions to the Type II list relies in part on reference to REV and SEP. 

Next Steps 

A public hearing will be held in Albany on March 31, 2017, and the comment period for the proposed amendments will close May 19, 2017. 

With seven offices around the country, including one in New York, Beveridge & Diamond has been involved with the National Environmental Policy Act and its state analogues (e.g., SEQRA) since the earliest implementation of these statutes. We counsel private and municipal clients on environmental review and local, state and federal permitting and regulatory compliance requirements associated with the siting and development of renewable energy and fossil fuel generating facilities and transmission lines.  For more information, please contact the authors or Steve Gordon, John Paul, or Rusty Pomeroy.