NYSDEC Proposes Revisions to the SEQR Handbook to Conform with Recent Amendments to the SEQR Regulations

March 11, 2019

The New York State Department of Environmental Conservation (NYSDEC) is proposing significant revisions to its State Environmental Quality Review Act (SEQR) Handbook to conform with recently-adopted amendments to the SEQR regulations. These amended regulations became effective in January 2019. The proposed changes to the SEQR Handbook are available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/dseqrhandbook.pdf.

One of the primary targets of the amended SEQR regulations concerns Type II actions. Type II actions are those that have been determined not to have a significant adverse environmental impact and do not require review under SEQR. The proposed changes to the SEQR Handbook add quite a number of actions to the list of Type II actions to conform to the amended regulations. For example, a project calling for the replacement, rehabilitation, or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, typically is considered a Type II action. Now, such a project for the purpose of meeting energy codes also is a Type II action.

The proposed SEQR Handbook adds the following as Type II actions:

Retrofitting an existing structure and its appurtenant areas to incorporate green infrastructure;
Installing telecommunication cables in existing highway or utility rights of way using trenchless burial or aerial placement on existing poles;
Installing solar energy arrays where such installation involves 25 acres or less of physical alteration on sites such as closed landfills and brownfield sites;
Installing solar energy arrays on an existing structure as long as the structure is not a specified historical place;
A government agency’s acquisition and dedication of 25 acres or less of land for parkland, or dedication of land for parkland that was previously acquired, or an agency’s acquisition of a conservation easement;
Sale and conveyance of real property by public auction pursuant to Article 11 of the Real Property Tax Law, i.e., when a municipality or state agency acquires land through foreclosure or other means where the land reverts to the agency due to a failure of the owner to remain current on property taxes; and
Construction and operation of an anaerobic digester (which utilizes the naturally occurring process of anaerobic digestion) within currently disturbed areas at an operating publicly owned landfill, provided the digester meets certain specific conditions.

The proposed SEQR Handbook also focuses on Type I actions, which are actions that are considered more likely to have significant adverse environmental impacts and must be reviewed further under SEQR. The proposed SEQR Handbook contains a number of changes to the list of Type I actions to be consistent with the amended regulations. For example, the threshold for triggering a Type I SEQR inquiry for actions involving the construction of new residential units has been lowered. Previously, that threshold for a city, town, or village having a population of less than 150,000 was 250 units to be connected to existing community or public water or sewer systems. The amended regulations lower that to 200 units. Similarly, the threshold has been lowered for a city, town, or village having a population of greater than 150,000 persons but less than one million. It previously had to involve 1,000 units; that has been changed to 500 units. The proposed changes to the SEQR Handbook take into account these lower thresholds.

There is another notable change regarding Type I actions in the proposed SEQR Handbook, which is based on the amended regulations. Before January 1, 2019, a lead agency could waive the requirement of filing an environmental assessment form for a Type I action. The amended regulations eliminated the ability of a lead agency to waive that requirement. This arises from the fact that the scoping has been made mandatory by the amended regulations. Scoping is a process that develops a written document that outlines the topics and analyses of potential environmental impacts of an action that will be addressed in a draft environmental impact statement. Scoping narrows the issues and ensures that the draft environmental impact statement will be a concise, accurate, and complete document that is adequate for public review. The process for scoping is set out in 6 NYCRR § 617.8. The proposed changes to the SEQR Handbook make scoping mandatory for every draft environmental impact statement (except that mandatory scoping does not apply to supplemental environmental impact statements).

The deadline for public comments on the proposed SEQR Handbook expired on February 1, 2019 and the expectation is that the SEQR Handbook changes will be finalized soon.