ENV-45-15-00028-P Science-Based State Sea-Level Rise Projections

11/10/15 N.Y. St. Reg. ENV-45-15-00028-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 45

November 10, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-45-15-00028-P

Science-Based State Sea-Level Rise Projections

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of Part 490 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, section 3-0319

Subject:

Science-based State sea-level rise projections.

Purpose:

To establish a common source of sea-level rise projections for consideration in relevant programs and decision-making.

Text of proposed rule:

Part 490 Projected Sea-Level Rise

490.1 Purpose

This Part establishes science-based projections of sea-level rise for New York State’s tidal coast.

490.2 Applicability

This Part applies to consideration of sea-level rise by the Department, other State agencies, and applicants for relevant permits and approvals in the context of programs specified in the Community Risk and Resiliency Act.

490.3 Definitions

For the purposes of this Part, the following definitions apply:

(a) ‘2020s’. The years 2020 through 2029.

(b) ‘2050s’. The years 2050 through 2059.

(c) ‘2080s’. The years 2080 through 2089.

(d) ‘Baseline level’. The average level of the surface of marine or tidal water over the years 2000 through 2004.

(e) ‘ClimAID model outputs’. Projections based on the outputs of global climate models, downscaled to New York, and additional information, including information to account for anticipated changes in the rates of ice melt that cannot yet be more rigorously included in quantitative models.

(f) ‘Community Risk and Resiliency Act’. Chapter 355 of the Laws of 2014.

(g) ‘Department’. The New York State Department of Environmental Conservation.

(h) ‘High-medium projection’. The amount of sea-level rise that is unlikely (the 75th percentile of ClimAID model outputs) to be exceeded by the specified time interval.

(i) ‘High projection’. The amount of sea-level rise that is very unlikely (the 90th percentile of ClimAID model outputs) to be exceeded by the specified time interval.

(j) ‘Long Island Region’. The marine coast of Nassau and Suffolk counties.

(k) ‘Lower Hudson-New York City Region’. The main stem of the Hudson River, south from the mouth of Rondout Creek at Kingston, New York, and the marine coast of the five boroughs of New York City and the Long Island Sound in Westchester County.

(l) ‘Low-medium projection’. The amount of sea-level rise that is likely (the 25th percentile of ClimAID model outputs) to be exceeded by the specified time interval.

(m) ‘Low projection’. The amount of sea-level rise that is very likely (the 10th percentile of ClimAID model outputs) to be exceeded by the specified time interval.

(n) ‘Medium projection’. The amount of sea-level rise that is about as likely as not (the mean of the 25th and 75th percentiles of ClimAID model outputs) to be exceeded by the specified time interval.

(o) ‘Mid-Hudson Region’. The main stem of the Hudson River, from the federal dam at Troy to the mouth of Rondout Creek at Kingston, New York.

(p) ‘Sea-level rise’. The increase in the average level of the surface of marine or tidal water for the specified geographic region.

490.4 Projections

The tables in subdivisions (a), (b), and (c) of this section establish projected sea-level rise for the specified geographic region relative to the baseline level.

(a) Mid-Hudson Region

Time Interval	Low Projection	Low-Medium Projection	Medium Projection	High-Medium Projection	High Projection
2020s	1 inch	3 inches	5 inches	7 inches	9 inches
2050s	5 inches	9 inches	14 inches	19 inches	27 inches
2080s	10 inches	14 inches	25 inches	36 inches	54 inches
2100	11 inches	18 inches	32 inches	46 inches	71 inches

(b) New York City/Lower Hudson Region

Time Interval	Low Projection	Low-Medium Projection	Medium Projection	High-Medium Projection	High Projection
2020s	2 inches	4 inches	6 inches	8 inches	10 inches
2050s	8 inches	11 inches	16 inches	21 inches	30 inches
2080s	13 inches	18 inches	29 inches	39 inches	58 inches
2100	15 inches	22 inches	36 inches	50 inches	75 inches

(c) Long Island Region

Time Interval	Low Projection	Low-Medium Projection	Medium Projection	High-Medium Projection	High Projection
2020s	2 inches	4 inches	6 inches	8 inches	10 inches
2050s	8 inches	11 inches	16 inches	21 inches	30 inches
2080s	13 inches	18 inches	29 inches	39 inches	58 inches
2100	15 inches	21 inches	34 inches	47 inches	72 inches

Text of proposed rule and any required statements and analyses may be obtained from:

Mark Lowery, NYSDEC, Office of Climate Change, 625 Broadway, Albany, NY 12233-3251, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

Pursuant to Article 8 of the Environmental Conservation Law (the State Environmental Quality Review Act), a Short Environmental Assessment Form, a Negative Declaration and a Coastal Assessment Form have been prepared and are on file.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Summary of Regulatory Impact Statement

INTRODUCTION

On September 22, 2014, Governor Cuomo signed into law the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014 (CRRA). CRRA is intended to ensure that decisions regarding certain State permits and expenditures consider climate risk, including sea-level rise. Among other things, CRRA requires the Department of Environmental Conservation (Department) to adopt regulations establishing science-based State sea-level rise projections. Therefore, the Department is proposing to establish a new 6 NYCRR Part 490, Projected Sea-level Rise (Part 490). Part 490 will establish projections of sea-level rise in three specified geographic regions over various time intervals, but will not impose any requirements on any entity.

STATUTORY AUTHORITY

The statutory authority to promulgate Part 490 is found in Environmental Conservation Law (ECL) § 3-0319, which was added by CRRA. ECL § 3-0319 requires the Department to adopt regulations establishing science-based State sea-level rise projections by January 1, 2016. The promulgation of Part 490 by the Department will fulfill this statutory requirement.

LEGISLATIVE OBJECTIVES

CRRA was enacted with the purpose of ensuring that decisions regarding certain state permits, regulations, and expenditures include consideration of the effects of climate risk, including sea-level rise, and extreme weather events. Part 490 will implement one component of this objective by providing a common source of sea-level rise projections for consideration within these programs

NEEDS and BENEFITS

CRRA enumerates several permitting, regulatory and funding programs in which the applicants, the Department, or other relevant State agencies shall be required to consider future climate risk, including sea-level rise. Adoption of Part 490 will help to ensure that sea-level rise projections are incorporated into these decision-making processes in a consistent, transparent manner and will contribute to regulatory certainty.

Stakeholder Outreach

The Department conducted outreach to stakeholders in several fora prior to proposing Part 490. This outreach included interaction with the authors of various reports regarding sea-level rise in order to gain understanding of the most current and applicable science. For example, the Department held a teleconference with the authors of two reports on March 6, 2015. Moreover, the Department held individual discussions with certain particularly interested stakeholders, such as the City of New York on June 1, 2015. In addition, the Department’s stakeholder outreach included five public informational and listening sessions, at which Department staff presented background on CRRA and the scientific information the Department considered in developing Part 490. These meetings were advertised through Departmental press release and in the Department’s Environmental Notice Bulletin, and were held on June 23-25 at locations in Albany, New York City, and Nassau and Suffolk Counties. At these meetings, the Department received input from stakeholders on Part 490.

Summary of Projection Format

Based in part on this input, the Department proposes to adopt five projections for each of three regions of the State. The three regions of the State are Long Island, New York City and the Lower Hudson River upstream to Kingston, and the Mid-Hudson River from Kingston upstream to the federal dam at Troy. These three regions exhibit small differences in relative sea-level rise due to local conditions. The five projections for these three regions are low, low-medium, medium, high-medium and high. These qualitative terms refer to the rate of rise, not to ultimate water levels, as warming of the Earth system has already resulted in a long-term commitment of at least six feet of global sea-level rise (Strauss, 2013¹). In other words, while there is some uncertainty regarding the precise rate at which sea level will rise, there is relative certainty that global sea level will ultimately rise at least six feet over current levels. Finally, each of these projections is presented for four different time periods: the 2020s, 2050s, and 2080s, and the year 2100.

ClimAID Report

The Department’s proposed sea-level rise projections in Part 490 are based on sea-level rise projections included in Horton et al. (2014²), prepared for the New York State Energy Research and Development Authority, also known as the ClimAID report. ClimAID’s projections are based on the outputs of more than 20 global climate models, downscaled to New York, using the Intergovernmental Panel on Climate Change’s (IPCC) Representative Concentration Pathways (RCP) 4.5 and 8.5 as inputs. RCP 4.5 describes a scenario in which global greenhouse gas emissions increase only slightly before declining around the year 2040, leading to a stabilization of atmospheric greenhouse gas concentrations shortly after the year 2100. RCP 8.5 assumes no significant global emission-reduction policies are implemented and emissions increase, leading to higher atmospheric greenhouse gas concentrations.

ClimAID’s projections also incorporate additional information, e.g., expert judgment, to account for anticipated changes in rates of ice melt that cannot yet be more rigorously included in quantitative models. The methods used by Horton et al. (2014³) are identical to those used to generate sea-level rise projections for the New York City Panel on Climate Change (NPCC) and are described in more detail in Horton et al. (2015⁴) and NPCC (2015⁵).

The Department is basing its proposed low, low-medium, high-medium and high projections for the three regions on the 10th, 25th, 75th and 90th percentiles of ClimAID model outputs, respectively. The medium projection represents the 50th percentile of ClimAID’s model outputs, calculated as the average of the 25th- and 75th-percentile outputs. Stakeholders suggested that the Department add a 50th-percentile projection as many New York City agencies are using the 50th-percentile projection in their operational planning.

Comparison of ClimAID Report to Other Reports

As required by ECL § 3-0319, the Department considered various sources of information in proposing to adopt projections in Part 490 based on the ClimAID report. This includes projections prepared for the National Climate Assessment and the New York State Resiliency Institute for Storms and Emergencies (RISE).

The Department has considered numerous factors in proposing to base Part 490 on the ClimAID projections rather than on more conservative, less protective projections based primarily on process modeling. First, adoption of projections based on the ClimAID report ensures that regulators, planners and others have access to projections developed specifically for New York State and accounting for regional and local factors not considered in development of global sea-level rise projections. Second, the ClimAID research was conducted by the same research team that provided the NPCC projections, using the same methodologies, which have been peer reviewed and published in established scientific journals. Third, ClimAID provides projections for the entire tidal coast of the state, including the Hudson River upstream to the federal dam in Troy, rather than just Long Island and New York City. Fourth, New York City has already adopted the NPCC/ClimAID projections for its planning purposes; a State regulation based on alternative projections could create confusion among the public, planners and regulated community.

Finally, the proposed projection distribution (low, low-medium, medium, high-medium and high) constitutes a range suitable for risk-based planning and review of projects of varying projected life times and criticality. Although unlikely to occur in the more immediate future, the inclusion of higher sea-level rise projections in Part 490 allows for decision makers to consider the possibility in the context of the programs specified by CRRA.

Perhaps most importantly, the question for decision makers is not if a critical sea level will be reached, but when. Strauss (2013⁶) calculated that historic greenhouse gas emissions have already committed the globe to a mean sea-level rise of 6.2 feet over current levels. Even more conservative projections of rates of sea-level rise indicate sea-level rise of approximately six feet within the next 150 years. Thus, a full range of projections in Part 490 that includes higher values is appropriate to allow for consideration of a level of sea-level rise that will likely occur at some point, even if the timing of such occurrence is uncertain.

COSTS

Part 490 will not impose any costs on any entity because the regulation consists only of sea-level rise projections and does not impose any standards or compliance obligations. Therefore, there are no costs associated with Part 490. Likewise, the regulation will also not impose any additional costs on the Department or local government entities.

LOCAL GOVERNMENT MANDATES

Part 490 will not create any mandates for local governments, including any additional recordkeeping, reporting, or other requirements.

PAPERWORK

No additional record keeping, reporting, or other requirements will be imposed under this rulemaking.

DUPLICATION

This proposal does not duplicate, overlap, or conflict with any other federal or State regulations or statutes.

ALTERNATIVES

Alternatives to this proposal include: (1) No action, or not establishing Part 490, (2) basing the adopted projections on other scientific reports, and (3) using an alternative projection format.

1) No Action - Not establishing Part 490 is not an available alternative because ECL § 3-0319 requires the Department to adopt a regulation establishing science-based State sea-level rise projections.

2) Other Reports – The Department considered basing its proposed projections on several alternative scientific reports other than the ClimAID report, including Parris et al., (2012⁷), completed for the National Climate Assessment, and Zhang et al., (2014⁸), prepared for RISE. The Department also reviewed and considered information contained in reports of the Intergovernmental Panel on Climate Change (Church et al., 2013⁹), New York State Sea Level Rise Task Force¹⁰ and the New York City Panel on Climate Change.¹¹ The Department rejected basing the projections in Part 490 on any of these other reports because, among other reasons, the ClimAID report covers the entire tidal coast of the State, accounts for local and regional variations in sea-level rise, and incorporates the possibility of rapid ice melt.

3) Other Formats – The Department considered using a different projection format in Part 490, such as different geographic regions or time intervals. The Department is proposing Part 490 in a format that includes five projections for each of three geographic regions based on stakeholder input and because it is consistent with the format of the ClimAID report.

FEDERAL STANDARDS

There are no federal rules or other legal requirements relevant to Part 490. Therefore, this proposal does not result in the imposition of requirements that exceed any minimum standards of the federal government for the same or similar subject areas.

COMPLIANCE SCHEDULE

There is no compliance schedule required by the establishment of Part 490 because the rule does not impose any compliance obligations on any entity.

_______________

¹ Strauss, B. 2013. Rapid accumulation of committed sea-level rise from global warming. Proc. Natl. Acad. Sci. USA. doi: 10.1073/pnas.1312464110

² Horton, R., D. Bader, C. Rosenzweig, A. DeGaetano, and W. Solecki. 2014. Climate Change in New York State: Updating the 2011 ClimAID Climate Risk Information. New York State Energy Research and Development Authority (NYSERDA), Albany, New York.

³ Horton et al., 2014. Op. cit.

⁴ Horton, R., C. Little, V. Gornitz, D. Bader and M. Oppenheimer. 2015. New York City Panel on Climate Change 2015 Report: Sea level rise and coastal storms. Ann. New York Acad. Sci. 1336:36-44. doi:10.1111/nyas.12593

⁵ NPCC 2015: Appendix IIB. Sea level observations and projections: Methods and Analyses. Ann. N.Y. Acad. Sci. 1336(1):116-150. doi:10.1111/nyas.12593

⁶ Strauss. 2013. Op. cit.

⁷ Parris, A., P. Bromirski, V. Burkett, D. Cayan, M. Culver, J. Hall, R. Horton, K. Knuuti, R. Moss, J. Obeysekera, A. Sallenger, and J. Weiss. 2012. Global Sea Level Rise Scenarios for the US National Climate Assessment. NOAA Tech Memo OAR CPO-1. 37 pp.

⁸ Zhang, Minghua, Henry Bokuniewicz, Wuyin Lin, Sung???Gheel Jang, and Ping Liu, 2014: Climate Risk Report for Nassau and Suffolk, New York State Resilience Institute for Storms and Emergencies (NYS RISE), NYS RISE Technical Report TR???0???14???01, 49 pp.

⁹ Church, J.A. 2013. Chap. 13: Sea level change, in climate change 2013: The Physical Science Basis, edited by T.F. Stocker, D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y.xia, V. Bex, and P. Midgley, pp 1137-1216. Cambridge Univ. Press, Cambridge, U.K.

¹⁰ New York State Sea Level Rise Task Force: Report to the Legislature. 2010. New York State Department of Environmental Conservation. 103 pp.

¹¹ Horton et al. 2015. Op. cit.

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis is not required for Part 490. The Department is proposing this rulemaking to provide a common source of sea-level rise projections for consideration within programs specified by the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014. Because the proposed rule will not impose any requirements on any entity, no small business or local governments will be directly affected by the rule.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not required for Part 490. The Department is proposing this rulemaking to provide a common source of sea-level rise projections for consideration within programs specified by the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014. Because the proposed rule will not impose any requirements on any entity, it will not create any new or additional effect on rural communities.

Job Impact Statement

A Job Impact Statement is not required for Part 490. The Department is proposing this rulemaking to provide a common source of sea-level rise projections for consideration within programs specified by the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014. Because the proposed rule will not impose any requirements on any entity, it will not have any effect on jobs or employment opportunities.