By Sarah Lewis Belcher, Esq.
Anyone who has undertaken a project in New York State since 1978 has at least some familiarity with the state Environmental Quality Review Act (SEQRA). All state and local governments must comply with SEQRA by considering the environmental impacts of projects before they are approved.
So, if your project must be approved by a governmental entity, the SEQRA process must be completed.
The regulations implementing SEQRA were recently revised by amendments that took effect Jan. 1. These were the first amendments since 1996 and will change the landscape of SEQRA review in some significant ways that projects applicants should understand.
The SEQRA process differs depending on how a project is classified. A Type I project requires a Full Environmental Assessment Form (FEAF) and if, based on that form, the project is likely to have a significant adverse impact on the environment, an Environmental Impact Statement (EIS) must be prepared. Type II projects are not subject to the SEQRA process, so the time to obtain governmental approvals can be substantially reduced.
Projects that are neither Type I nor Type II are Unlisted and require a Short Environmental Assessment Form (SEAF), but if, based on that form, there are significant adverse environmental impacts, the project may have to follow the same SEQRA process as a Type I action.
Additionally, agencies must coordinate their review of Type I actions, actions requiring an EIS and certain Unlisted actions. As a result, classification of a project can make a big difference in the process that must be followed, as well as the time commitment and cost of the project.
The recent amendments modified the Type I and II lists, classifying some actions that used to be Type II actions as Type I actions, and expanding the list of Type II actions. This is helpful for developers of projects that have been added to the Type II category, but not for developers of former Type II projects that are now Type I.
For residential projects, the numbers of units triggering Type I classification have been lowered; i.e. for municipalities with population of 150,000 or less, projects involving the connection to a public water/sewer system of 200 units (as opposed to the prior 250) are now Type I actions; if the population is between 150,000 and 1 million, projects with connections of 500 units (as opposed to the prior 1,000) are now Type I actions; and if the population is greater than 1 million, projects with connections of 1,000 units (as opposed to the prior 2,500) are now Type I actions.
Non-residential projects involving the construction or expansion of parking for varying thresholds of vehicles based on population have also been added as Type I actions. Additionally, projects that are wholly or partially in or substantially contiguous to property that is eligible for inclusion (rather than listed, as in the prior regulations) on the State Register of Historic Places are now Type I actions.
Advancing Green development
In an effort to encourage green, energy efficient buildings, the list of Type II actions, which are not subject to SEQRA, has been expanded to add upgrading/retrofitting an existing building to meet energy codes and/or incorporate green infrastructure. Installation of solar panels on up to 25 acres of land on a closed landfill or environmentally remediated sites, re-use of a residential/commercial/mixed use structure and an agency’s acquisition and dedication of not more than 25 acres for parkland were added as Type II items too.
The amendments also modify the process agencies must follow for projects that require an EIS. In this situation, scoping is now required, whereas it was optional under the prior regulations. Scoping is a process in which all involved agencies participate and provide written comments on the project and draft EIS.
The agency that takes the lead on the project must briefly describe the main issues considered and provide reasons why any issues were not included in the final scope (whereas the prior regulations required that the main issues raised only be listed). Although these tasks fall on the governmental agencies that review/approve the project, it impacts the developer by slowing down the process and potentially increasing the cost.
The bottom line for developers, even if you’ve been through the SEQRA process many times for prior projects, is to determine early on what type of project you have under the new amendments. This will enable you to more accurately plan what, if anything, must be done to comply with the revised SEQRA.
Belcher is senior counsel with Bond, Schoeneck & King and represents developers, lenders, purchasers, sellers, landlords and tenants in a wide variety of commercial real estate and lending matters.
By Sarah Lewis Belcher, Esq.