SEQRA Changes & New Assessment Forms

NYSAPLS Annual Conference

January 24, 2014

8:00 a.m. – 9:30a.m.

SEQRA in 2014: What you need to know

I.INTRODUCTION:

[1]This will be a big year:

This includes not only what permits, authorizations, and approvals you will need.
But also incorporating environmental considerations in project development. The new SEQRA Forms/Workbook not only advocate protection of natural resource, but have a clear bias against any type of development that
(1) requires new infrastructure;
(2) is outside already developed areas
(3) is not mixed land use and compact development, preserving open space;
(4) relies on auto use, rather than public transportation; or
(5) does not promote intermunicipal and regional planning
Obviously, this creates problems for rural and suburban areas.

[2]New SEQRA EAF Forms are in effect as of October 2013 and are having an immediate effect on land use applications filed since then.

[3]DEC has also, on November 28, 2012, proposed important amendments to the SEQRA Regulations. These amendments probably will become effective in 2014

I.NEW SEQRA FORMS AND WORKBOOKS

A.DEC has been proposing new SEQRA Forms since 2007, and they have finally arrived.

B.As DEC has described it, the purpose of the new forms is very benign:

[1]“More effective information gathering” at an earlier stage in the process

[2]General modernization: forms not revised since 1978. Have the forms “catch up” to existing practice

C.However, DEC notes there are some new elements:

[1]Incorporate “new” [i.e. post 1978] SEQRA issues, e.g. energy and climate change, brownfields, pollution prevention, environmental justice, “smart growth.”

[2]Incorporate better analysis of planning, policy, and local legislative actions, which “can have greater impacts on the environment than individual physical changes.”

D.The “new” elements have very important substantive consequences.

[1]The Short EAF (now called “SEAF”) is much longer than it was before.

[2]Change the format of the Short EAF to more closely follow the Full EAF “Still short, but more useful.”It has a Part 1—Project Information; a Part 2—Evaluation of Impacts; and Part 3 for further information if needed.

[3]The Full EAF (now “FEAF”) is far, far longer. A very expensive document to prepare

E.One major change for the good is that DEC is recommending the “Short” EAF for most projects:

[1]A central purposes of the revision was to “improve” the short EAF, so that it can be used “most” unlisted actions. Statistically, DEC says that 75% of actions are “unlisted” and are legally able to use the short EAF.

[2]DEC “anticipates that many more reviews will be based on the revised short form, leading to substantial economies over time for local governments.” [DEC SAPA analysis]

[3]DEC is relyingon increased use of the short EAF to avoid the admitted potential cost impacts of forcing applicants to prepare the new Full EAF

[4]To make this clearer, the new SEAF Workbook clearly states that use of the Full EAF should be limited to actions which are “almost” Type I’s:

There may be instances when an action falls just below the criteria of a Type I action, and the FEAF might be more appropriate than the SEAF. Once a determination has been made for the Type of Action, you can move on the appropriate introductory page for the Full EAF or Short EAF. [Workbook page 3]

[5]However, it might be hard to break the habit of using the full EAF for unlisted actions, and you may need to advocate for the short EAF. The SEQRA Regulations give lead agencies discretion to require the full EAF, even for unlisted actions.

For Unlisted actions, the short EAF must be used to determine the significance of such actions. However, an agency may instead use the full EAF for Unlisted actions if the short EAF would not provide the lead agency with sufficient information on which to base its determination of significance. The lead agency may require other information necessary to determine significance.6 NYCRR 617.6 [a][3]

Additionally, the SEQRA Regulations [617.2 (m)] define “EAF” somewhat tautologically as a document with sufficient information, so there can always be a fact-based argument about whether the short EAF contained “enough information” in the particular case. A properly completed EAF must contain enough information to describe the proposed action, its location, its purpose and its potential impacts on the environment.

It is important for project applicants to strongly advocate for the SEAF, based on DEC’s own language in the workbooks.

[6]Additionally, many local agencies routinely require a Full EAF when there is a circulation for lead agency, and do not realize that an action can be circulated for coordinated review and lead agency designation without filing a Full EAF. See Workbook Flowchart, page 3 Again, very important that you advocate for your client here to avoid unnecessary costs.

F.THE WORKBOOKS

[1]The Workbooks will be a central component of the “efficiency” of the new forms. Use of the Workbook will “save time.”

[2]Links to spatial data would be more directly available to “ordinary users” and “may lessen business reliance on expensive consultants to perform environmental analysis.” [DEC SAPA analysis]. See for example the DEC’s Environmental Mapper.

G.Careful:The Workbooks are not neutral. They clearly encourage a very “activist” role by reviewing agencies

[1]The SEAF Workbook cautions the lead agency that it has the duty to make sure that the data you provide is “complete and accurate enough to make a reasonable decision.” The lead agency should “cross-check and verify” the information. The links are intended to assist the agency in doing this. [Workbook, page 6-7]

[2]The Workbook also recommends that lead agencies make a site visit. [Workbook, page 7]

[3]When you couple the activist role with the suggestion that the Board does not need “experts,” you can readily see the possibility of runaway amateur evaluations of important environmental data.

II.DETAILED DESCRIPTION OF THE NEW SHORT FORM EAF (SEAF), INTENDED BY DEC TO COVER ALMOST ALL PROPOSED PROJECTS.

A.The Short Form now follows the form of the Full EAF more closely. It has a Part 1—Project Information; a Part 2—Evaluation of Impacts; and Part 3 for further information if needed.

B.Part 1-Project Information:

[1]The new form is two and one-half times as long as the old form. The whole form is almost twice as long, but the real addition is to Part 1 (what the applicant fills out).

[2]The instructions state that the applicant is to use “currently available information” but significant research may still be required.

Many of the questions require obtaining information from several sources (e.g. the building inspector, the CAC, records of applications already filed). Workbook page 6: “Use the SEAF Workbook to help you find background information, definitions, illustrations, maps, and other data…[U]se other existing information that may be available locally. Good sources of information include: site plans or subdivision plats that have been completed on the parcel or nearby parcels, local comprehensive or strategic plans, and other application materials already submitted to the lead agency. Many municipalities have completed open space or environmental inventories or plans, and these can be excellent sources of local information. If the municipality has an appointed CAC, consider contacting them or additional information on local environmental resources.”
Many other questions require a certain level of design consideration (how will project provide potable water, sewage disposal, handle storm drainage, etc.)

[3]The Applicant can also add “additional information” to the form, and project sponsors are well advised to submit as much helpful information as possible.

[4]New form has room for contact information for the project sponsor, lacking in the previous form.

[5]New form has twice as much space for the project description

[6]Question 1: Form now addresses “direct actions” by local government in adopting plans and laws

[7]Question 3: Much clearer question about project acreage. Old form asked (vaguely) about “amount of land affected” (initially and ultimately) The new form is much clearer. It asks the acreage of the (whole) site; the acreage to be disturbed; and the total acreage (including project site and any contiguous properties) owned or controlled by the applicant/project sponsor. The Workbook states that the area of disturbance can be estimated if no survey has yet been completed. [page 9] The purpose of asking about other lands controlled by the project sponsor is to spot potential “segmentation.” The new form omits the question about “initial” vs. “ultimate” disturbance.

[8]Question 4: The development context.

50% more possible categories of land use to consider: “Residential” now divided into 3 categories: “Urban,” “Residential (suburban),” and “Rural (non-agricultural).” “Forest” and “Aquatic” added.
Question now more specific, about “all land uses that occur on, adjoining and near the proposed action,” rather than “present land use in vicinity of project.” The Workbook states that “near” has a flexible meaning, depending on setting, and suggests (where no other more specific definition provided in local law) using 500 feet in urban settings, 1000 feet in suburban settings, and 2,500 feet in rural areas. However, since the purpose of an EAF is to identify impacts, the term “near” should be interpreted in a way “that helps identify land uses that might be impacted.

[9]Question 5: Consistency with zoning. This question has now been expanded to ask not only whether the proposed action is a “permitted use” under zoning, but also whether it is “consistent with the adopted comprehensive plan.”

Sometimes the issue of “consistency” with a comprehensive plan is not black & white clear. The Workbook (page 12) is not very helpful in determining consistency. It suggests calling the code enforcement officer.
The Workbook verifies that a use permitted by special permit is deemed “permitted.”
Also beware that the Part 2 evaluation of impacts section considers many other planning documents than just the Comprehensive Plan.

[10]Question 6 is new: Is the action “consistent” with “the predominant character of the existing built or natural landscape.”

This question could also prompt controversy. In one sense, every development of a greenfield site is “changing” the natural landscape.
The Workbook (page 13-14) links the question to the topic of “community character,” and suggests asking
Will the proposed use be “different” than what is surrounding it?
Will the proposed project have architecture and site design that is visually consistent with other buildings/structures in the area?
The Workbook says that a “different” project does not necessarily cause adverse environmental impact, but it is more likely to. The Part 2 Impact Evaluation goes into much more detail on aberrations from “predominant” character.

[11]Question 7: a restatement of the question about Critical Environmental Area, if action is located in, or adjoining, a CEA.

[12]Question 8: Will proposed action result in a substantial increase in traffic above present levels.

The Workbookprovides a helpful table for many land uses, to enable an applicant to answer the question without doing a formal traffic study (see table page 15). The Workbook concludes that a project generating fewer than 100 peak hour trips per day will not result in significant increases in traffic. Under this standard, the following sized uses would not result in a substantial increase in traffic: Fewer than 95 single family homes; a smaller than 3,000 gross square feet band or fast food restaurant with drive in; a general office building of less than 67,000 gross square feet. For uses not listed in the table, the applicant is directed to calculate impacts based on ITE Trip Generation Manual.
Also note the two other traffic questions in the form: whether public transportation or pedestrian or bicycle routes are available “at or near the site.” The Workbook (page 17) defines “near” as one-half mile, which is generally considered “walking distance.” DEC considers these questions to be ‘teaching moments’ to help an applicant “green” his plan where possible. The Workbook suggests that the applicant explain whether he can add a linkage to an existing pedestrian accommodation or bike route.
Beware that in Part 2, a project does not need to “substantially increase” traffic in order to have a “significant impact” on traffic. The assessment also considers the sufficiency of the existing road network to carry the traffic.

[13]Question 9: Does the proposed action meet or exceed the state energy code requirements? Describe any way that the project exceeds those requirements.

The Workbook (page 18) provides many helpful links to information. Virtually all projects which require building permits will have to comply with the energy code, so most projects will answer “yes.”
The Part 2 impact evaluation is intended to “encourage” energy steps that go beyond the Energy Code required minimums.

[14]Question 10: Will proposed action connect to an existing public/private water supply? If not, describe method for providing potable water.

Workbook page 19 provides DOH definition of public water system: “Any system with at least five service connections or that regularly serves an average of at least 25 people daily for at least 60 days out of the year.”
Private system is anything that is not a public system.
Link to a Fact sheet on Individual Water Supply Wells.
Workbook notes that project sponsor must describe in Part 1 its proposed method for providing potable water, so this information must be available at the time the SEAF is submitted.

[15]Question 11: Will the proposed action connect to existing wastewater utilities? If no, describe method for providing wastewater treatment.

Similar to preceding question.
Workbook provides very little information

[16]Question 12: Does the site contain a structure listed on either the State or National Register of Historic Places? Is the proposed action located in an archeological sensitive area?

Workbook (page 22) provides link to National Register Information System, but notes that this resource only lists properties by their historic names, and not by address or tax parcel. The applicant might have to check every listing within the relevant county.
Workbook also provides link to State Preservation Historical Information Network Exchange (SPHINX) tools through Internet Explorer. DEC says it will be adding additional links to this data in the future.
Workbook provides link to Geographic Information System for Archeology and National Register tool to identify areas that contain archeologically sensitive features. DEC also promises additional links to this data in the future.
Workbook notes that a “yes” answer to any of these questions may mean that project is Type I, and must use Full EAF. Note the proposed change in the SEQRA Regulations, to raise the Type I threshold from “any” action within or substantially contiguous to an historic resource, to apply only to actions which are 25% of the size normally required to constitute Type I, so that historic proximity operates in the same manner as proximity to agricultural and parkland resources [see 6 NYCRR 617.4 [8],[9],[10]]

[17]Question 13: Does any portion of the site of the proposed action, or lands adjoining the proposed action, contain wetlands or other waterbodies regulated by a federal, State, or local agency? Would the proposed action physically alter, or encroach into, any existing wetland or waterbody?

The question includes buffers and regulated streams, although not specifically stated.
Workbook page 23-24 contains links to Environmental Resource Mapper, and notes that DEC will be providing additional links to this data in the future. The link to Adirondack Regional Geographic Information System (ARGIS) must be used within the APA. The Workbook also provides links to the National Wetlands Inventory Wetlands Mapper.

[18]Question 14: Identify the typical habitat types that occur on, or are likely to be found on the project site: shoreline, wetland, forest, urban, agricultural/grasslands, suburban, and early mid-successional

Workbook (page 28) emphasizes that it is not necessary to hire a biologist to answer this question, and that a layperson can answer the question based upon consultation of Google Maps or Bing Maps, a site visit, review of the Workbook descriptions, linked websites, and consultation with local municipal resources that may contain habitat information as part of a comprehensive plan.

[19]Question 15: Does the site of the proposed action contain any species of animal, or associated habitats, listed by the State or Federal government as threatened or endangered?

The Workbook (page 29) explicitly states that a site-specific wildlife or plan inventory is not required, and that a consultation of the DEC website (Environmental Resource Mapper and New York Nature Explorer) and local information sources will be sufficient to obtain all needed information. The Workbook also contains other links, and notes that DEC will be providing additional links to spatial data in the future.
As to local sources, the Workbook recommends consultation with the local Clerk to determine if there are existing studies on wildlife and plant inventories, maps, etc, and also the local CAC.
Note that many communities routinely require a site specific study. See also Kittredge v. Planning board of Town of Liberty, 57 A.D.3d 1336 (3d Dept 2008)

[20]Question 16: Is (any portion of) the project site located in the 100 year flood plain?