The New York State Department of Environmental Conservation (“DEC”) has proposed a draft rule making package to revise the regulations implementing the New York State Environmental Quality Review Act (“SEQRA”). The revisions would be the first in more than two decades, and according to the DEC, are designed to encourage smart growth and sustainable development across the State.
The main changes proposed by the DEC would greatly expand the list of “Type II” actions which are not subject to environmental review under the Environmental Conservation Law. The added to Type II actions include: the retrofitting of an existing structure or facility to incorporate green infrastructure; the installation of fiber optic or other broadband cable technology in existing highway or utility rights of way; the installation of cellular antennas on existing structures that are not listed in the national or state registration of historic places or located within an historic district; and the installation of 5 megawatts or less of solar energy arrays on a sanitary landfill and brownfield sites, or on existing structures that are not listed in national or state registration of historic places or located within an historic district.
Other activities which will now be Type II actions are the development of previously disturbed sites of various sizes in the municipal center of a city, town or village depending on the population of the municipality; acquisitions of 100 acres or less of land for parkland; the transfer of 5 acres or less by a municipality for the construction or rehabilitation of 1, 2 or 3 family housing; and certain brownfield site clean up agreements. All in all, over eighteen (18) activities would be added to the Type II list, a one-third increase from what currently exist.
The proposed revision to the SEQRA regulations also require that a scoping proceeding to identify environmental concerns be mandatory prior to the preparation of an environmental impact statement (“EIS”). The regulations dictate that a draft EIS must be deemed adequate if the issues raised during the scoping process are addressed.
The additions to the list of Type II actions are designed to encourage activities that would be viewed as environmentally friendly, or would take place in developed areas involving already disturbed sites. The DEC’s hope is that adoption of these regulations would cut back on the number of actions that require SEQRA review, and would create a more common sense approach to when an environmental review is required. In addition, by strengthening the impact of the scoping process, the proposed regulations will force the consideration of issues early on, and hopefully decrease challenges to Environmental Impact Statements through the court process.
The proposed regulations are an attempt to streamline the SEQRA process, and more importantly, exempts environmentally friendly activities from time consuming and expensive environmental review. This is understandable given that discouraging and delaying environmentally friendly actions for the purpose of environmental review makes little sense.