On July 11, 2012, the New York State Department of Environmental Conservation (“DEC”) issued a draft scope for a Generic Environmental Impact Statement on proposed amendments to the regulations that implement the State Environmental Quality Review Act (“SEQRA”), 6 NYCRR Part 617.  The regulations establish a process for the environmental review required by SEQRA when state or local agencies have the discretion to approve, fund or directly undertake an action, including the process for determining whether or not an environmental impact statement (“EIS”) is required and, if an EIS is required, the process for preparation of the EIS.  The stated purpose of the amendments is to streamline the SEQRA process without sacrificing meaningful environmental review.

Among the proposed amendments are changes to the list of Type I actions.  Type I actions are those actions which are considered “more likely” to require the preparation of an EIS.  First, DEC proposes to lower certain numerical thresholds that place an action in a Type I category.  Thus, for the construction of new residential units connected to a public water or sewage system, the Type I threshold has been reduced from 250 to 200 units in cities with 150,000 persons or less and from 1,000 to 500 units in cities with more than 150,000 but less than 1 million persons.  Second, DEC proposes to add a Type I category for parking lots or garages for 500 vehicles in cities with 150,000 persons or less and parking lots or garages for 1000 vehicles in cities with more than 150,000 persons.  Finally, DEC proposes to limit the number of projects that become Type I actions solely as a result of their proximity to historic buildings or districts.  Under the current regulations, actions that occur wholly or partially within, or substantially contiguous to historic buildings or districts that are listed or proposed to be listed on the National Register of Historic Places or that are listed on the State Register of Historic Places are Type I actions.  Pursuant to the amendments, only those actions that occur wholly or partially within, or substantially contiguous to historic buildings or districts and also exceed 25% of any Type I threshold would be considered a Type I action.

The proposed amendments also expand the list of Type II actions.  Type II actions are those actions that have been determined not to have a significant effect on the environment and therefore require no SEQRA review.  According to DEC, these changes are intended to allow agencies to focus time and resources on those projects likely to have significant adverse environmental impacts and to encourage environmentally compatible development.  The following are some of the more significant proposed changes:

  • Currently, any acquisition, sale, lease or transfer of real property by a state or local agency is a Type I action, regardless of the intended activity on the property.  The amendments make such transactions a Type II action if the transaction will facilitate a Type II action.
  • Re-use of a non-residential structure not requiring a change in zoning or use variance, that does not exceed any of the Type I thresholds, would be a Type II action.
  • Lot line adjustments and area variances not involving a change in allowable density would be Type II actions.
  • Replacement, rehabilitation or reconstruction of a structure or facility in kind on the same site in order to meet energy codes or use green infrastructure techniques, that does not exceed any of the Type I thresholds, would be a Type II action.
  • Installation of rooftop solar energy arrays or cellular antennas on existing structures that are not historic resources would be Type II actions.
  • Brownfield site clean-up agreements would be Type II actions.

The proposed amendments also make public scoping for EISs mandatory in order to receive public input as early as possible.  Currently, scoping is mandatory in New York City, but not elsewhere in the state.  The amendments also add language to encourage targeted EISs, which are EISs that assess the likely effects of an action in only those impact areas that have been determined to have the potential for significant adverse impacts.  The amendments provide that “scoping should result in EISs that are only focused on relevant, significant adverse impacts.”

With regard to preparation of EISs, the proposed amendments add language to require that, if a draft EIS is determined to be inadequate by the lead agency, its determination of the adequacy of the resubmitted draft EIS must be based solely on the written list of deficiencies provided by the agency following the previous review.   This requirement is meant to streamline the review process by eliminating the possibility of the agency raising new deficiencies every time a draft EIS is revised and resubmitted.  In the same vein, the amendments also add a requirement that if a final EIS is not prepared and filed within 180 days after acceptance of the draft EIS, the EIS will be deemed complete automatically based on the draft EIS, public comments and project sponsor’s response to comments, provided that the response to comments is submitted to the lead agency a minimum of 60 days prior to the required filing date of the final EIS.

The draft scope for the proposed amendments can be found here.  Comments on the draft scope may be submitted to DEC through August 10, 2012.