Earlier this month, the New York State Sea Level Rise Task Force (“Task Force”) released a draft report assessing the climate-related threat to coastal communities and recommending a series of policy changes (“Draft Report”). The state legislature commissioned the Task Force in 2007, bringing together state agency representatives, county and local government officials, and other public and private stakeholders to “protect[] New York’s remaining coastal ecosystems and natural habitats, and increas[e] coastal community resilience in the face of sea level rise.” The Draft Report is open for public comment until Dec. 12, 2010, and is scheduled to be finalized by Jan. 1, 2011.
The Draft Report contains nine findings concerning the projected impacts of sea level rise and 14 policy recommendations for state legislators and executive agencies to prepare for and protect against those risks. This post focuses on the recommendations related to the State Environmental Quality Review Act (“SEQRA”), the New York law requiring state and local governments to consider the potential significant adverse environmental impacts of their actions.
The SEQRA recommendations primarily relate to actions undertaken within newly-proposed “coastal risk management zones,” which would require an amendment to SEQRA or its implementing regulations. The Task Force suggests that such zones should be established and include those areas that FEMA has already identified as “coastal high hazard areas” or “areas of moderate wave action” on Flood Insurance Rate Maps (Draft Report, at 54).
SEQRA regulations currently categorize actions as Type I (those that presumptively have significant adverse impacts and are more likely to require preparation of a full Environmental Impact Statement), Type II (those determined not to have significant adverse impact or otherwise precluded from SEQRA review) and Unlisted. Under one proposal, the Task Force recommends that all Unlisted Actions undertaken within a coastal risk management zone be added to the Type I list (Draft Report at 61). Alternatively, the Draft Report suggests amending the criteria for environmental significance in the SEQRA regulations to expressly incorporate sea-level rise related impacts (Draft Report at 61; 6 NYCRR 617.7(c)).
Neither of these recommendations, however, addresses the technical issues of how the environmental significance of sea level rise on a proposed project should be measured. Moreover, the classification of all actions occurring within a coastal risk management zone as Type 1 may be inconsistent with existing SEQRA guidance which anticipates that the significance of sea level rise and other global warming impacts on a project would be assessed “on a case-by-case basis” — with no bright line test imposed based on project location.[1] This recommendation could also sweep in minor discretionary actions, such as wetland permits for single lots, that are not the type or scale of government action typically considered Type I.
Finally, the Task Force makes a commonsense recommendation that DEC’s short and long Environmental Assessment Forms (“EAF”) – used to determine the potential significance of an action’s environmental impacts – be revised to “require[e] an evaluation of risks to and from the project based on the risk of sea level rise and coastal hazards … and other related effects of sea level rise” (Draft Report at 61). The long EAF currently asks, “Is [the proposed] project or any portion of project located in a 100 year flood plain,” though sea level rise is projected to expand the areas of New York traditionally considered at risk of serious flooding.
For additional information on the consideration of climate-related impacts under SEQRA or the National Environmental Policy Act (“NEPA”), contact Steven Russo.
[1] DEC, Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements, July 15, 2009, at 4, 5.
