Environmental review faces important changes

More than 40 years have passed since New York implemented the State Environmental Quality Review Act, commonly known as SEQRA. The state Legislature enacted this sweeping law in 1975 to “establish a process to systematically consider environmental factors early in the planning stages of actions that are directly undertaken, funded or approved by local, regional and state agencies.” The state Department of Environmental Conservation then promulgated regulations for the law.

Over the years, SEQRA has become the major component of the planning and zoning process across the state. Unfortunately, the regulations, which were last updated in 1996, are frequently used by opponents and/or municipalities to delay or defeat development projects that they oppose.

This is done in many ways. The most common are to: require endless “studies,” to continually request additional information before deeming a SEQRA document to be complete or ready for a public hearing; and to keep public hearings open month after month.

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This year, the state DEC has proposed additional amendments to the SEQRA regulations. Its stated goal is to streamline the process without sacrificing meaningful environmental review. Public comments concerning the amendments are being accepted through May 19th, after which it is anticipated that the amendments will be adopted.

According to the DEC, the proposed changes are modest in nature and are not intended to alter the basic structure of an environmental review.

The proposed changes include:

  • Expanding the number of actions not subject to further review. These are projects that the DEC has deemed to not have significant environmental impacts. Current examples include: repair and maintenance of existing structures, facilities and roads; construction of one- , two- or three-family residences; and license, lease and permit renewals. The DEC proposes adding additional actions, including: installation of cellular antennas on non-historic listed structures; installation of small solar energy arrays; minor subdivisions of four or fewer lots; and adaptive reuse of previously disturbed sites meeting certain criteria.
  • Modifying thresholds for actions deemed more likely to require the preparation of an Environmental Impact Statement — by reducing the number of residential units and parking counts that trigger this designation.
  • Requiring every Draft Environmental Impact Statement  to have a “scope”, which essentially is an outline of the relevant potential environmental issues to be studied in detail. DEC’s intent is to weed out irrelevant or minor issues, making the process more efficient and focused.
  • Making the acceptance procedures for Draft Environmental Impact Statements more predictable by better defining the criteria under which an agency must deem the document complete. This would give applicants greater certainty, and would give municipalities and agencies reviewing the DEIS more guidance in determining that the document is ready for a public hearing.

It is a positive development that DEC is updating the SEQR regulations to streamline the process, while encouraging the development of alternative energy, green infrastructure and affordable housing, and while continuing to mitigate potentially significant environmental impacts.

However, the DEC should consider several additional amendments to the regulations to further these goals.

Specifically, the lack of an enforcement mechanism for the failure to comply with the timeframes set forth in the regulations will render them meaningless. This is one of the biggest issues with the current regulations, often leading to a lengthy and open-ended review process.

The DEC could consider provisions that would make the process more certain (without being less protective of the environment). For example, the state could impose default acceptance of a DEIS after a certain number of days and could require that a public hearing be closed after a specific time period. Such changes would go a long way toward achieving the DEC’s stated goals.

The author is a partner in the White Plains law firm of McCullough, Goldberger & Staudt, LLP, where he practices land use and environmental law.