Co-location of wireless antennas, as well as a handful of other actions, may be removed from the previously proposed list of Type II actions that would not be subject to New York’s State Environmental Quality Review Act (“SEQRA”). These and other proposed revisions to the New York State Department of Environmental Conservation’s (“NYSDEC”) SEQRA regulations were released on April 4, 2018. Besides a reduced list of Type II actions, other notable changes include modifications to other Type II categories, lower Type I thresholds for residential development and clarifying language to require project sponsors to include late-filed comments in the Draft Environmental Impact Statement (“DEIS”). Comments on these revisions and NYSDEC’s Revised Draft Generic Environmental Impact Statement (“R-DGEIS”) will be accepted until May 4, 2018.
NYSDEC reported that most of the comments received on the last round of proposed changes were regarding the actions that would be deemed Type II, with many expressing concern that some proposed Type II actions could adversely impact the environment depending on the context of project. As a result, NYSDEC removed a number of previously proposed Type II actions including co-location of cellular antennas, anaerobic digesters at waste water treatment plants, “in-fill” development in municipal city centers, brownfield cleanup agreements and subdivisions defined as minor under a municipality’s subdivision regulations.
Expanded criteria and clarifying language have been added to some of the remaining Type II actions. For solar installations, instead of implementing a five-megawatts-or-less threshold, now, in order for a solar array to qualify as Type II, it must involve 25 acres or less of physical alteration. The revisions will also add Superfund sites to the list of solar array sites that qualify as Type II in addition to brownfields with certificates of completion, closed sanitary landfills, publicly owned wastewater treatment facilities, sites zoned for industrial use, and parking lots or garages.
The classification of broadband or fiber optic network installations as a Type II action has been clarified to encompass “installation of telecommunication cables in existing highway or utility rights of way utilizing trenchless burial or aerial placement on existing poles.” Other clarified actions include the reuse of buildings, acquisition of parkland and transfers of land to construct one-, two-, and three-family housing.
NYSDEC reported that a number of commenters also took issue with provisions that allowed a project sponsor to respond to late-filed comments in the final EIS if not addressed in the DEIS. Noting that the public often does not learn about a project until after scoping is complete, NYSDEC revised the proposed regulations to require that late-filed comments be included in an appendix to the DEIS.
While the initial changes to SEQRA were highly publicized last year, these late-breaking revisions have not yet received the same level of promotion. With a short 30-day public comment period, coupled with some major revisions to the Type II list, careful review of these changes will be required to determine whether and to what extent projects may be affected, and whether further comment is warranted.