Several environmental regulations are in the process of being reviewed and revised both at the federal and state levels. These regulations include:
Isolated Wetland Classification
Any or all of these can affect your next project. Below is a brief synopsis of some of these pending changes.
NYSDEC to Issue Revised EAF’s
(Environmental Assessment Forms)
The NYSDEC has proposed changes to both the Short Form and the Long Form EAF’s; the forms used by municipalities and decision makers to determine the environmental significance of a proposed action. Both forms have undergone substantial changes, and the drafts are currently under review by the NYSDEC Albany office.
The EAF has been revised and expanded, the Short Form now being four (4) pages long, and Part I of the Long Form comprising eighteen (18) pages. The purpose of the revisions and expansion of the forms, per NYSDEC, is to be sure that they address critical environmental issues such as brownfield redevelopment, energy efficiency, climate change, smart growth, pollution prevention and environmental justice; issues that may not have been in the public consciousness when the EAF’s were first developed. As one reviews the new draft forms, concern is raised by the subjective nature of certain questions that have been added.
The SEQRA process, which is to be based upon due diligence and a “hard look” at the facts, now has the potential to be hijacked by questions such as “How is a building to be heated?”, “Are there incentives for use of hybrid or electric vehicles, please describe.” and “Is the proposed action located within or adjoining an environmental justice community of concern (as defined by the Federal EPA based on variables including ethnic origin and economic status)?” The time and effort to complete the Long Form EAF will increase, and it will likely draw out the public review process, especially for those projects with public opposition. Not only does the applicant need to get up to speed to address such questions for their applications, but municipalities will need to prepare themselves in order to effectively review these items.
The revisions to the short form EAF could benefit both applicants and municipalities. DEC estimates that currently 75% of all applications are Unlisted Actions, but municipalities are reluctant to use the current Short Form EAF because they find it to be lacking in obtaining any real information on the scale and scope of the application. The thought of DEC is to expand the Short Form EAF so that it effective in obtaining the information necessary to allow a lead agency to make a SEQRA determination. This would leave the Long Form EAF for use on Type I projects, and thus save both the applicant and municipality time.
The public comment period on the draft forms is closed and NYSDEC is currently reviewing all comments. Per discussions with NYSDEC Albany, the earliest that DEC believes they will be completed with their review is late Spring 2012. BME will continue to monitor the Department’s progress and provide updates as necessary. The draft forms can be reviewed on the NYSDEC website.
Please contact us at BME to discuss any of these changes.
Changes to Isolated Wetlands Regulation
The Environmental Protection Agency (EPA) and US Army Corps of Engineers (USACE) have released updated guidance that expands the definition of areas (i.e. wetlands) that are to be covered by the Clean Water Act. This new guidance expands the areas to be protected and will result in more water bodies, including isolated wetlands, to be subject to protection under the Clean Water Act.
This update provides more clarity of what waters are to be regulated, and in turn, to streamline the permit process. The argument of the EPA and USACE is that the process will be streamlined because basically all waters will be regulated and subject to protection and permits, and thus a landowner will save time by not having to wait for a jurisdictional determination from the USACE. However, there has been no mention of increased staffing or funding for the USACE. So more waters will be regulated, resulting in more permit applications, but no changes in staffing to review applications and issue permits are apparent. USACE personnel will still need to visit property to verify delineated wetland boundaries.
The new draft guidelines propose jurisdiction for isolated wetlands or water bodies if they can support “commercial waterborne recreational use,” (including boat rentals, guded fishing charters, etc.) However this is not defined in the guidelines, and thus will be subject to interpretation by each individual USACE District. This interpretation is a significant change in approach and will result in fewer wetlands being designated as isolated and non-jurisdictional. Currently, non-jurisdictional isolated wetlands can be developed or altered without a permit. Under the new guidelines, if it is determined that the wetland areas can support a recreational use, the areas will be protected under the Clean Water Act, and will be subject to the USACE permit process.
The public comment period for these draft guidelines was closed by the EPA on July 31, 2011. Presently, the EPA is reviewing these comments and will be finalizing the guidance document. There is no date for the issuance for the final version, however we do expect the guidance to be in place by the 2012 season. [Read the Proposed Guidance Document here.]
As a property owner, you should consider obtaining an isolated wetland determination under the current or “old” criteria, prior to the issuance of the new document. If done, this will render the isolated wetlands non-jurisdictional and the determination is valid for five (5) years. Please contact our office with your questions on this matter, and / or to discuss your specific options.
Proposed Changes to NYSDEC Regulations Part 664
In early 2011, the NYS Department of Environmental Conservation (NYSDEC) in Albany prepared a draft revision to Part 664 Freshwater Wetlands Maps and Classification. This draft was sent to the NYSDEC regional offices for review and comment. The regional offices returned their comments to the Albany NYSDEC headquarters this summer. Our understanding is that all comments are now at the NYSDEC Executive level, but at this point it is not a high priority and the DEC does not have a schedule for releasing the updated version for public comment. Once they proceed with finalizing the proposed revised regulations, it will go to public notice to solicit comments. The intent of the proposed changes is to clarify and simplify processes associated with wetland mapping and wetland classification.
There are several positive changes to be noted. The DEC wetland delineation guidelines are getting closer to the federal wetland delineation manual. This may be an opportunity for development of a single set of rules for both federal and state agencies. It would simplify the delineation and jurisdictional determination process. The new draft also allows qualified consultants to perform delineations instead of NYSDEC staff, which would likely represent an opportunity to eliminate delays associated with waiting for NYSDEC personnel to perform delineations.
The proposed changes we are most concerned about involve wetland classifications, which would allow two or more non-contiguous wetlands to be classified as a single wetland, as well as the new definition of “linear wetlands.”
Proposed wetland classification changes could result in many wetlands obtaining a higher classification than under current regulations. Wetland development permits for wetlands with a higher classification (i.e. Class 1) are difficult to obtain, therefore fewer permits would be issued with these higher wetland classifications.
Treatment of two or more isolated wetlands as a single wetland is probably the most significant change we are concerned about. NYSDEC generally regulates wetlands over 12.4 acres (5 hectars). The 12.4 acres could be comprised of several smaller wetlands under current regulations if they are within 50 meters (165 ft.) from each other. The new proposal increases the separation between potentially regulated wetlands to 500 feet if a hydrologic connection is present, including groundwater or animal species that utilize both wetlands through their life cycle. These interpretations would be very subjective and hard for regulators to prove and even harder for land owners to disprove. Thus, areas currently not under NYSDEC jurisdiction could be under these new guidelines.
Linear wetlands are not mentioned in current regulations. The proposed revision describes linear wetlands as 10’ and wider. These linear wetlands would need to total 12.4 acres or greater in size. In addition, the state wetlands have a 100 feet adjacent area (buffer), which is regulated almost the same way as the wetland itself. So under the new scenario, a 10 foot wide linear wetland would have 100 feet adjacent area on both sides making it 210 feet of state regulated area. It is well known that it can be difficult to get any permit for disturbances of the state wetlands and its adjacent areas, so this additional “taking” could have detrimental effect on development of many properties. These proposed changes will result in more NYSDEC regulated wetland areas in New York.
The development on properties with wetlands will get increasingly more difficult. Now is your opportunity to have wetlands delineated under the old guidelines and secure state wetland jurisdictional determination before the regulations get revised. Please contact our office to discuss these changes and/or your individual circumstances.
NYSDEC Revisions to Endangered and Threatened Species Regulations
On November 3rd, 2010, the NYSDEC revised their Endangered and Threatened Species Regulations. This revision was developed to provide standards, criteria and timeframes for the new Article 11 or Initial Take Permit.
Before these regulations were revised, there was no specific permit or application process for an Incidental Take Permit. In the past, the threatened and/or endangered species was identified (or the issue was raised) through other permit actions such as an Article 24 Wetland Permit or through the SEQR process.
The new Initial Take Permit will stand on its own and will follow the procedures to administer key regulatory permits by the DEC provided in the Uniform Procedures Act. These procedures establish specific standards for permit issuance or denial. The process would be similar to applying for a Wetland Permit, Protections of Waters Permit, SPDES Permit, etc.
The revisions now require an applicant / owner to address habitat loss as part of their project review if an endangered species habitat is identified. The process includes determining if such a habitat exists on the property, and if so, the impacts of the project on the habitat. In the event that habitat is to be disturbed as a result of project activity, a permit will be required from NYSDEC and a mitigation plan proposed for DEC approval. This would include reclamation of disturbed habitat and creation of new habitat. All of this would be under the jurisdiction of NYSDEC and subject to SEQRA.
It will be more important in the early stages of a project to request your consultant to investigate the status of endangered species and habitat on a property. The NYSDEC database should be checked and the site walked to investigate potential habitat areas. This will be a subject that should be addressed with the Lead Agency during a project’s SEQRA process.
More information on the Article 11 permit can be found on the NYSDEC website.
Home | Services | Portfolio | Information | Careers | Resources | About BME | Contact BME | Search
