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May 29, 2012

New York City Releases New Wetlands Strategy

By: Maggie Macdonald — Filed under: New York City Environmental Law, Wetlands — Posted at 10:43 am

On May 20, Mayor Bloomberg announced a new wetlands strategy for New York City, building on the PlaNYC’s goals of improving water quality, increasing opportunities for recreation along waterways and waterfronts, and restoring natural environments along coastal areas.

The New York City Wetlands Strategy (“Wetlands Strategy”) had originally contemplated creating a local ordinance and establishing an enforcement regime on the local level to protect vulnerable wetlands from development and fill.  However, given the relatively small amount of privately-owned wetlands in the City and the significant cost of establishing such a regulatory scheme, the City instead opted to pursue other avenues to protect wetlands.

Notable among the City’s initiatives is the plan to work with the New York State Department of Environmental Conservation and the U.S. Army Corps of Engineers to revise state and federal mitigation guidance to take into account unique circumstances associated with New York City wetlands.  The goal of these revisions will be to increase transparency for mitigation policies and provide guidance specific to New York City, where on-site mitigation is often not feasible.  For example, the Wetlands Strategy suggests creative mitigation approaches suited to the City’s geography, such as debris removal and hazardous material remediation.

In tandem with proposed revisions to mitigation guidance, the Wetlands Strategy includes a proposal for a banking or “in-lieu of” fee mechanism to increase the flexibility of mitigation required for public projects. The in-lieu of fee system would allow permit applicants to designate an approved third party to undertake a mitigation project. In a banking system, credits are created where a public or private entity restores, enhances or preserves natural resources with the oversight of an inter-agency review team.  These mitigation credits may then be used for projects within a given region or service area.

The Wetlands Strategy also includes initiatives to improve wetlands mapping and monitoring to determine the current extent of NYC wetlands and the potential and ongoing impact of sea level rise on these resources.

For more information on tidal and freshwater wetlands regulation and enforcement in New York, contact Michael Bogin or Maggie Macdonald.

May 18, 2012

Congress Negotiating Changes to Environmental Review of Federal Transportation Projects

With the federal transportation funding bill set to expire on June 30, 2012, federal lawmakers are negotiating the details of new legislation that could affect the environmental review of many highway, bridge and other surface transportation projects.  The United States House of Representatives and Senate passed differing transportation bills earlier this year and recently appointed a committee of legislators charged with reconciling those differences.

Federal transportation programs are currently funded under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”), enacted in August 2005.  While that bill was set to expire in late 2009, Congress passed a series of temporary extensions while considering more substantive changes in longer-term reauthorization bills.

In April 2012, the House of Representatives passed a new transportation bill (H.R. 4348), with a series of provisions intended to streamline and reduce the review of transportation infrastructure projects under the National Environmental Policy Act (“NEPA”).  In its declaration of policy, the legislation states: “[I]t is in the national interest to expedite the delivery of surface transportation projects by substantially reducing the average length of the environmental review process.” (§ 602.)  Thus, the bill provides that if NEPA review is not completed with 270 days of the notice of project initiation, “the project shall be considered to have no significant impact to the human environment for purposes of the National Environmental Policy Act.”  (§ 618.)  The bill further limits the alternatives required to be considered for transportation projects, and states that federal funding of less than $10,000,000, or less than 15 percent of a transportation project’s anticipated costs, shall not trigger NEPA review.  (§ 608.)

The Senate version of the transportation bill (S. 1813) does not include those broad NEPA changes.  It does, however, require agencies with permitting authority over transportation projects to render decisions within 180 days of a completed application or the lead agency’s final determination under NEPA, whichever is later.  (§ 1313(6).)  Agencies that miss that deadline could be required to transfer $20,000-$100,000 per week to the agency charged with rendering an ultimate decision on the underlying project.  (Id.)  Like the House bill, the Senate version also authorizes certain pre-construction activities prior to the completion of NEPA review.

The committee of lawmakers tasked with crafting a consistent transportation bill began formal negotiations on May 8, though their differences between the House and Senate legislation extend far beyond their environmental review provisions.  For more information on the federal or state environmental review of transportation projects, contact David Paget or Mark Chertok.

May 10, 2012

New York City Council Approves “Zone Green” Amendments

By: Ed Roggenkamp — Filed under: Green Building & Energy Efficiency, Land Use & Development, New York City Environmental Law — Posted at 11:49 am

On May 1, 2012, the New York City City Council unanimously approved changes to the New York City Zoning Resolution that will encourage green construction for new buildings and green retrofits for existing buildings, along with other innovations.  Subject to certain limitations, the amendments will allow building owners to incorporate elements of environmentally-friendly construction even when those elements would otherwise violate applicable bulk regulations, such as restrictions on building size or height.  Other amendments will allow solar power generation or charging of electric vehicles in certain zones, clarifying regulations that were originally written to exclude gas stations and conventional power plants.

Existing buildings will now be able to add up to eight inches of insulation to their exterior even if the added material would violate existing regulatory limits on building size.  The changes to the zoning regulations allow existing buildings to add insulation without counting such additional thickness against floor area restrictions, so long as the additional insulation meets certain energy-efficiency requirements.  Similar revisions permit existing buildings to add up to eight inches of insulation without counting them against a building’s maximum height or the minimum setback and open space requirements, and allow new buildings to incorporate thicker insulation in their exterior walls if the insulation exceeds the requirements of the New York City Energy Conservation Code by a specified percentage. 

Other changes are designed to encourage the use of solar energy for power generation.  The revised regulations allow buildings to add solar energy systems to their roofs without counting them against a building’s maximum height.  The solar panels themselves must meet additional height restrictions according to the building’s zoning designation and whether the roof is flat or angled.  Buildings will also be allowed to add solar panels or exterior solar shades to their exterior walls as “permitted obstructions” that can project into open space required by the zoning code. 

The new zoning rules also allow several other environmentally-friendly elements as “permitted obstructions” on building roofs.  These include wind turbines on buildings over 100 feet tall and buildings near the waterfront, rooftop greenhouses, like the one planned for Sunset Park, “blue roofs” that use weirs and detention mechanisms to slow the release of stormwater, and “green roofs” that use rooftop vegetation to retain water, reduce heat gain, and provide recreational space.  The rules also permit boilers to be placed on building roofs, rather than in the basement. This eliminates the need for interior chimneys, increases energy efficiency, and reduces fire risk.

For more information on the New York City Zoning Resolution, please contact Steven Barshov.

May 2, 2012

EPA Issues New Regulations on Air Emissions from Natural Gas Drilling

By: Adam Stolorow — Filed under: Clean Air Act, Hydraulic Fracturing & Marcellus Shale — Posted at 6:22 pm

Last month, the U.S. Environmental Protection Agency (“EPA”) issued its first-ever regulations governing emissions of air pollutants from hydraulically fractured natural gas wells, requiring natural gas producers to install new equipment to capture wellhead emissions on new or re-drilled wells no later than January 2015. 

In addition to releasing natural gas (methane) that is recovered and sold as the main product of the hydraulic fracturing (or “fracking”) process, fracking also releases excess methane, benzene, hexane, volatile organic compounds (“VOCs”) and other pollutants that escape from the wellhead into the air, particularly during the stage of well “completion”, when newly drilled wells transition from the drilling phase to production phase.  Each of these gases has environmental impacts.  Methane is a greenhouse gas twenty times more powerful than carbon dioxide.  Benzene (a human carcinogen) and hexane are toxics with known human health impacts, while VOCs contribute to the formation of smog.  EPA’s regulations will require natural gas producers to capture these emissions at the wellhead using add-on equipment known in the industry as “green completions” or “reduced emissions completions.”  Such equipment is already required by state regulations in Wyoming and Colorado. 

While EPA initially proposed that the regulations would go into effect immediately, the final regulations only require natural gas producers to have green completions equipment installed on new or re-drilled wells by January 2015.  The natural gas industry had lobbied for the delay in implementation, and EPA cited the lack of sufficient supplies of green completions equipment as the reason for the delay until 2015.  Well operators will be required to flare their emissions until the new technology is installed.   

The EPA estimates that green completions technology will be cost effective for the industry because the captured methane gas can be sold, and because natural gas companies currently using the technology have reported that green completions can be a profitable addition to their wellhead operations.

The full text of the regulations is available here.