By Peter J. Weishaar

The regulations implementing the State Environmental Quality Review Act—commonly known as SEQRA—were recently amended by the Department of Environmental Conservation.  The newly revised regulations go into effect on January 1, 2019. 

The amendments are intended to streamline the SEQR process without sacrificing meaningful environmental review.  According to the DEC, these amendments are the first major changes to the SEQRA regulations since 1996.  The amendments include revisions to the Type I and Type II lists of actions, changes to the scoping process, and claim to modernize the regulations related to publication of key documents on the Internet.

Let’s take a “hard look” at these amendments.

Type I actions are actions specifically listed in the regulations that are more likely to require the preparation of an environmental impact statement than unlisted actions.  The amendments modify the list of Type I actions by adding certain thresholds to several of the existing actions listed.  For example, unlisted actions that are adjacent to historic buildings or structures now qualify for Type I treatment if the actions exceed 25% of any of the thresholds established for any of the other Type I actions listed.  Previously, any unlisted action adjacent to a historic building or structure would have qualified as a Type I action.

Type II actions are actions specifically listed in the regulations that are not subject to further review under SEQRA.  The amendments modify this list by adding several new actions that incorporate green infrastructure or other green technology, such as solar arrays.  An action to reuse a residential or commercial structure where the residential or commercial use is permitted by the applicable zoning ordinance is also now added to the list of Type II actions, provided it does not exceed any of the Type I thresholds. 

One of the more significant changes to the regulations is that scoping will now be required for all environmental impact statements.  The primary goal of scoping is to focus the environmental impact statement on potentially significant adverse impacts and to eliminate consideration of those impacts that are irrelevant or not significant.  Previously, scoping was not mandated, but could have been initiated by the lead agency or project sponsor.

The new regulations also permit copies of environmental impact statements to be provided in electronic, as well as printed format, and certain notices will also be permitted by email.  The lead agency will also be required to publish on a free of charge and publicly available website draft and final scopes, and draft and final environmental impact statements.

Aside from the substantive changes discussed above, one other significant change to be aware of is that many of the paragraphs that were otherwise unchanged by the amendments were nevertheless re-numbered or re-lettered in the sections including the definitions and the listing of Type II actions.  Therefore, one doing research regarding these otherwise unchanged provisions needs to pay special attention to the provision being discussed in the applicable caselaw, treatise, or SEQRA Handbook.

The amended regulations will apply to all actions for which a determination of significance has not been made prior to January 1, 2019.    

If you would like to schedule a consultation to discuss SEQRA, zoning or land use matters, please contact Peter J. Weishaar, Esq. at pweishaar@mccmlaw.com or 585.512.3542.  Pete’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of municipalities as special counsel in litigation matters.  He has also served as counsel to applicants and neighbors concerned about projects before planning and zoning boards.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.