DEC Proposes Amendments To SEQRA Regulations, Part Three: Additions To The Type II List – Green Projects

Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. This the third post in our series examining the proposed amendments.  The focus of this post is the Type II list of actions, particularly proposals to add certain the environmentally friendly measures.

Type II actions (Part 617.5) are actions or classes of actions “which have been determined not to have a significant effect on the environment and which do not require environmental impact statements.”  The purpose of this list is to accelerate the SEQRA review process and reduce the administrative burden on both the lead agency and applicant by categorically excluding actions that almost invariably receive negative declarations. The proposed amendments would expand this list by adding several new types of actions to the Type II list.

With respect to environmentally friendly improvements, the proposed amendments would add two new types of actions to the Type II list.  The first is “Green Infrastructure,” defined as “practices that manage stormwater through infiltration, evapotranspiration and reuse such as the use of permeable pavement; bio-retention; green roofs and green walls; tree pits, stormwater planters, rain gardens, vegetated swales, urban forestry programs; downspout disconnection; and stormwater harvesting and reuse.”  While these practices could be used in new development projects, the proposed amendments would be limited to retrofit projects (the replacement or altering of an existing structure to incorporate green infrastructure practices).

Similarly, another proposed addition is “Upgrade of Structures to Meet Energy Codes.”  As the name implies, this would expand the existing “replacement, rehabilitation, or reconstruction” language for in-kind upgrades to include meeting energy codes.  Currently, the provision is limited to upgrades to meet the applicable building and fire codes.

Finally, the proposed amendments would add a broad category for the installation of solar energy arrays with a generating capacity of five megawatts or less.  The focus is on installation on existing structures, or alternatively on land such as sanitary landfills, sites zoned for industrial use, or placed on or over residential and commercial parking facilities (lots or garages).  This meets a variety of state goals relating to clean energy, improving air quality, etc., and does so by utilizing dead space in existing structures or otherwise unused land.  The five-megawatt cap also ensures that large, utility-scale projects will still require SEQRA review.

DEC will hold a public hearing on the regulations on March 31, 2017, and be accept comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.

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