Posted By Matthew Jokajtys on January 2, 2013
During the summer of 2012, the DEC proposed its first substantive amendments to the State Environmental Quality Review Act (SEQRA) regulations since 1996. The DEC has explained that the amendments are meant to streamline the review process “without sacrificing meaningful review,” but the potential impact of the proposed amendments appears to be somewhat mixed. The proposed amendments center most notably on the “scoping” process, the classification of certain types of projects, and the timeline of the SEQRA process.
First, the DEC seeks to change from optional to mandatory the “scoping” process, whereby the lead agency seeks to focus the Environmental Impact Statement (EIS) for a project on the truly significant issues, rather than on minor issues. Though increasing the number of mandatory steps in the SEQRA process seems the opposite of streamlining, the DEC argues that the extra step would have a net time and resource-conserving effect: by including a fuller description of all the major issues for a project early in the process, subsequent steps in the process may be more likely to proceed more smoothly and with less interruption.
Second, and more on the side of maintaining—or even increasing—“meaningful review,” the DEC has proposed adjusted or entirely new thresholds for residential projects to automatically trigger classification as “Type I” projects. Under SEQRA, a Type I project carries with it a presumption of a potentially “significant adverse environmental impact.” Type I projects require the preparation of an EIS to consider the potential impacts of the project and weigh potential alternatives.
Under the current regulations, a proposed residential project will automatically be classified as Type I if it includes 1,000 new connections to existing municipal water or sewage systems in a community of greater than 150,000. Under the proposed amendments, this threshold would be halved to only 500 new connections in such communities. The DEC has also proposed an entirely new threshold metric that would trigger Type I classification of projects based on the proposed number of parking spaces. For example, in a community of less than 150,000, a proposed project with 500 planned parking spaces would be classified as a Type I project. In a community of greater than 150,000 the threshold would be 1,000 planned parking spaces.
Despite the above, the proposed amendments do have the potential to streamline SEQRA review for certain types of projects. DEC has proposed additions to the list of projects that are exempt from SEQRA review, known as “Type II” projects. The proposed additions to the list of Type II projects include actions of a country or regional planning entity, brownfield site clean-up agreements under Title 14 of ECL Article 27, installation of rooftop solar arrays on certain existing buildings, and replacement, rehabilitation or reconstruction of certain structures which use green infrastructure.
Finally, the proposed amendments seek to address the perennial problem of the deadline for the final EIS. Currently, the SEQRA regulations require that the final EIS be submitted 60 days after the filing of the draft EIS, or 45 days after the conclusion of any hearing regarding the draft EIS. However, in its statement on the proposed amendments, DEC acknowledged that this timeline was “unrealistic” and rarely met. In recognition of this fact, the proposed amendments would set a 180 day backstop on the final EIS. The draft EIS, together with the public comments and the responses to the public comments submitted to the lead agency, would by default be declared the final EIS if a formal final EIS is not filed within 180 days after the approval of the draft EIS.
With new mandatory scoping, and an expanded list of SEQRA-exempt projects, the proposed amendments to SEQRA could significantly alter the SEQRA landscape of New York State if they are ultimately enacted by DEC. While the public comment period for the proposed amendments has closed, stay tuned to the Periconi, LLC Environmental Law Blog for the latest developments on SEQRA.