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New York State Department of Environmental Conservation Proposes Amendments to Environmental Assessment Forms

The New York State Department of Environmental Conservation ("DEC") recently proposed amending its Short and Long Environmental Assessment Forms ("EAFs"), and is accepting public comment on the revised forms through April 8, 2011. These forms are used in the environmental review process that is required under the State Environmental Quality Review Act ("SEQRA"), ECL §§ 8-0101 et seq., for any state action, which includes approval of project permits. The project sponsor and the lead agency undertaking the environmental review will complete an EAF (either long or short depending on the proposed action) to determine whether a full environmental review is warranted, that is, whether the applicant will need to prepare an environmental impact statement (EIS). Typically the Long EAF is used for Type I actions (these are actions, set forth in the regulations, that are more likely to require the preparation of an EIS), and the Short EAF is used for Unlisted Actions (which are actions that have not been listed in the regulations as Type I or Type II, and which are always subject to at least an environmental review). See 6 NYCRR §§ 617.4, 617.6. 

Revisions to the Short EAF

DEC has essentially added 15 new substantive questions for the project sponsor in Part I (Project and Sponsor Information) of the Short EAF including whether the proposed project will cause a substantial increase in traffic above present levels and whether public transportation, pedestrian accommodations and bicycle routes are available at or near the site; whether the project will maximize use of energy efficient design or include the use of onsite renewable energy technologies; and whether it will be located in or adjacent to an environmental justice community of concern as defined by EPA.

Most of the considerations for the agency in Part II (Impact Assessment) are the same, but are addressed in individual questions, rather than large groupings of issues. For example, one question from the proposed Part II asks the agency to consider whether "the proposed action may result in a substantial adverse change in existing level of traffic or impact alternative means of transportation." The corresponding question in the current Short EAF asks: "Could action result in any adverse effects associated with the following: existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal, potential for erosion, drainage or flooding problems?" The other issues in this question are also dealt with in separate questions on the proposed form.

In addition, the new form requires the agency to consider whether the proposed action may cause a substantial increase in the use of energy, whether it fails to incorporated energy conservation opportunities, and whether it creates an environmental burden on environmental justice communities.

Revisions to the Long EAF

Part 1, which the project sponsor or applicant typically completes, is titled Project and Setting and contains significantly more questions asking for greater details about areas already addressed in the current Long EAF and also includes new areas of questioning, some of which are touched on in the Short EAF. Wastewater, energy and transportation are three areas that the Long EAF currently addresses but are addressed in greater detail on the proposed draft form. With respect to traffic, the proposed Long EAF emphasizes whether the proposed action includes access to public transportation, provides incentives for use of hybrid vehicles and includes accommodations for pedestrians or bicycles. Questions about energy usage now include whether the proposed action incorporates energy conserving opportunities and onsite renewable resources.

The most significant new areas of inquiry are increase in greenhouse gas emissions, impacts on the environmental justice community, flooding, stormwater, coastal resources and impacts on light. In addressing GHG emissions, the EAF asks pointed questions about whether and in what amounts specific pollutants, including carbon dioxide and methane, will be emitted. Like the new treatment of potential impacts on emissions of GHGs, the addition of flooding, impacts on the environmental justice community and impacts on light represent timely issues that have relatively recently been introduced into our environmental conscious. Impacts on light include light shining into adjoining properties and creation of sky-glow brighter than existing area conditions. Surprisingly, the current EAF forms do not address stormwater. Impacts to stormwater discharges are addressed in the proposed Long EAF. Though impact on coastal resources is not addressed in the current form, there is an additional coastal assessment form from the NYS Department of State Coastal Management Program that applicants are required to fill out if their project occurs within or otherwise affects land along the Great Lakes and tidal coastlines.

The most significant change to the form of the Long EAF Part 2 (Identification of Potential Impacts), which the lead agency completes along with Part 3 (Evaluation of Magnitude and Importance of Project Impacts and Determination Significance) in assessing the environmental impact of the proposed project, is that the column to check whether the potential (or definite) impact can be mitigated has been eliminated. Part 2 also breaks up impacts on water to impact on surface water and impact on groundwater and adds impact on flooding. All the substantive changes to Part 1 are consistent in Part 2.

Part 3, the explanation of all "yes" answers in the Part 2 section, has not changed.

How do you, our readers, think these revisions will impact environmental review in New York State? Will it lengthen the process? In order to file comments with DEC, you must send them to Robert Ewing, NYSDEC - Division of Environmental Permits, at depprmt@gw.dec.state.ny.us, by April 8, 2011.

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