In July 2012, the New York State Department of Environmental Conservation (“NYSDEC”) proposed significant amendments to the regulations that implement the State Environmental Quality Review Act (“SEQRA”). The proposed changes will mandate certain steps that are currently optional, will lower threshold triggers for SEQRA review and will reclassify certain actions to change the level of SEQRA review.
Scoping, a process aimed at focusing environmental impact statements (“EIS”) on potentially significant adverse impacts and eliminating consideration of irrelevant or insignificant impacts, is currently optional. The proposed amendments mandate scoping for every EIS. In addition, the proposed amendments place greater emphasis on using the environmental assessment form (“EAF”) early in the scoping process.
Certain criteria for Type I actions, which are presumed to have significant adverse impacts and require the preparation of an EIS, are proposed to be lowered. For example, these actions would be classified as Type I under the proposed regulations: (i) residential developments with 500 or more parking spaces in communities with a population of 150,000 or less; and (2) residential developments with 1,000 or more parking spaces in communities with a population of 150,000 people or more. The proposed amendments would change certain Unlisted actions into Type I actions if they exceed certain criteria and are located wholly or partially within or substantially contiguous to an historic resource.
The NYSDEC is also proposing to broaden the list of actions that will not require review under SEQRA (so-called “Type II actions”). These include: (1) certain minor subdivisions involving 10 acres or less and certain subdivisions of four or fewer lots; (2) replacement, rehabilitation, or reconstruction of certain structures or facilities that use green infrastructure techniques; (3) installation of rooftop solar energy arrays on an existing structure, provided it is not listed on the National or State Register of Historic Places; (4) installation of less than 25 megawatts of solar energy arrays on closed sanitary landfills; (5) installation of cellular antennas or repeaters on an existing structure that is not listed on the National or State Register of Historic Places; and (6) sites that are the subject of a NYSDEC Brownfield Clean-up Program agreement.
The NYSDEC is proposing to revise the timeline applicable to the completion of a final EIS. Currently, a final EIS is supposed to be prepared within 45 days after the close of any hearing or within 60 days of the filing of the draft EIS. These deadlines are rarely met. The proposed amendments provide that if a final EIS is not prepared and filed within 180 calendar days after the lead agency’s acceptance of the draft EIS, the EIS shall be deemed complete on the basis of the draft EIS, public comment, and the response to comments prepared and submitted by the project sponsor to the lead agency.
Whether these proposed changes, if enacted, will streamline the SEQRA process remains to be seen.