The new Environmental Assessment Forms (EAFs) that must accompany the submission of applications for development projects both large and small may have the effect of discouraging applications for new projects.
The revised submission forms that are required under the State Environmental Quality Review Act (SEQRA) that were intended to help streamline the municipal regulatory approval process may fall short of the desired goal.
The introduction of the new forms by the New York State Department of Environmental Conservation (DEC) follows nearly two years of negotiations and hearings with the business community and environmental interests.
We have been deeply involved in efforts to reform the SEQRA process. Respectively, we serve as chairman of the Westchester County Association”™s Economic Development Task Force SEQRA Subcommittee, and a member of the subcommittee that met with DEC staff. We have provided extensive feedback on the proposed changes to the forms that are submitted to a lead agency to initiate an environmental review of a development application.
While the revised EAFs improve the transparency of the approval process as the state intended, unfortunately they place increased burdens on property owners, developers and investors. While it is too soon to gauge the impact the new forms will have, the changes made to both the short form used for smaller environmental actions and the full EAF used for more substantial projects, will likely add significant cost to the applicant and lengthen what is already a drawn-out municipal approval process.
Effective Oct. 7, 2013, all project submissions for municipal review must use the new EAFs. Applications previously in process are not affected. In its attempt to simplify the review process, the DEC has adopted revised forms for the three SEQRA review project classifications:
Type 1 actions are applications or actions for projects with potentially significant environmental impacts and require applicants to file a Full EAF.
Type 2 actions involve small actions such as a building permit application, construction of a single-family home on a building lot (not a subdivision) or requests for setback variances that pose no potential environmental impacts and do not require SEQRA review or submission of an EAF.
Unlisted actions involve proposals falling between Type 1 and 2. For these, the DEC guidance document regarding the new EAFs urges municipal reviewing agencies to require the short EAF. The exception is in cases where the size of the project falls just below the threshold for a Type 1 action, in which case a full EAF may be deemed appropriate. However, this is a suggestion and not a requirement. Thus, local reviewing agencies can choose to require the long forms for any unlisted action regardless of its scope or size.
The original plan was to introduce the new EAFs in tandem with revised SEQRA regulations. However, while the DEC adopted the new forms, it has not yet implemented revised regulations supporting the forms, having adopted a Final Scope for a Generic Environmental Impact Statement (GEIS) on the revised regulations in November 2012, with no further public action taken to date.
The DEC is providing guidance to applicants by providing EAF workbooks that can be used in the preparation and review of EAF submissions, and it has established the Environmental Resource Manager, a web-based interactive mapping application that can be used to locate New York state-regulated freshwater wetlands and state-classified streams and water bodies.
The potential problems, however, arise with the supposedly simplified application forms that effectively raise rather than ease the burden on the applicant, which was the original intent for revising the forms. The new short EAF actually looks a lot more like the previous full EAF, while the new full EAF resembles a mini-Environmental Impact Statement.
In the case of the full EAF, the applicant must now provide a great deal of additional detail and information compared with the prior requirements. In conference calls and meetings with the DEC, we repeatedly expressed our concerns that the new full EAF seeks so much information, that it is likely to have the effect of discouraging applicants from submitting development proposals because they will have to spend so much money up front.
The impact of the changes will largely be determined at the local level. If municipal reviewing agencies use the forms as a way to lengthen the approval process and increase the upfront financial burdens on property owners and developers, the net impact of the revised application forms that were supposed to streamline the approval process will have the opposite effect in Westchester and across the state. And that would be a true lost opportunity for new economic development that creates jobs and helps keep property taxes down. The finalization of the GEIS and the implementation of new regulations by the DEC would go a long way toward providing much needed clarity with SEQRA.
Frank McCullough Jr. is senior partner and Seth Mandelbaum is a partner with the law firm McCullough, Goldberger & Staudt L.L.P. in White Plains. They can be reached at fmccullough@mgslawyers.com and smandelbaum@mgslawyers.com.
