ENV-47-10-00015-P This Rule Amends the Environmental Assessment Forms in 6 NYCRR 617.20, Appendices A-C

11/24/10 N.Y. St. Reg. ENV-47-10-00015-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 47

November 24, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. ENV-47-10-00015-P

This Rule Amends the Environmental Assessment Forms in 6 NYCRR 617.20, Appendices A-C

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

Proposed Action:

Amendment of section 617.20 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, section 8-0113

Subject:

This rule amends the environmental assessment forms in 6 NYCRR 617.20, appendices A-C.

Purpose:

The purpose of the rule is to update the environmental assessment forms.

Public hearing(s) will be held at:

1:00 p.m., January 25, 2011 at Department of Environmental Conservation, 625 Broadway, Rm. 129, Albany, NY.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following State website:www.dec.ny.gov/permits/6061.html):

The environmental assessment forms ("EAF") are model forms promulgated by the Department of Environmental Conservation ("DEC") and appended to the State Environmental Quality Review Act ("SEQR") regulations as required by the SEQR (see ECL § 8-0113). The EAFs are used by agencies and boards involved in the SEQR process to assess the environmental significance of actions they may be undertaking, funding or approving. The "full EAF" (or long form) has not been substantially revised since 1978 while its sister form, the "short EAF," was last substantially revised in 1987. In the years since the EAFs were first created, DEC and other SEQR practitioners have gathered a great deal of experience with environmental analyses under SEQR. DEC has brought this experience to bear by preparing modern full and short EAFs. DEC has also proposed modifications to the forms to include consideration of emerging environmental issues such as climate change and energy conservation, environmental justice ("EJ"), smart growth, and pollution prevention. The revised EAFs have been changed to better address planning, policy and local legislative actions, which can have greater impacts on the environment than individual physical changes.

In addition to these substantive changes, the structure of the forms has been updated, to make them more straightforward for lead agencies and sponsors to use as well as readily compatible with electronic media. DEC proposes to merge the substance of the Visual EAF Addendum (6 NYCRR 617.20, Appendix B) into the full EAF and then eliminate the Visual EAF Addendum. This will help reduce the multiplicity of forms. In addition, DEC expects to support the revised forms with a workbook that will explain questions in the EAF and also direct users to sources for additional information. The draft forms are published in full at the following web address: http://www.dec.ny.gov/permits/6061.html

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

Robert Ewing or on the web: www.dec.ny.gov/permits/6061.html, New York State Department of Environmental Conservation, 625 Broadway, Albany, New York 12233, Comments may also be e-mailed to: [e-mail], [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

February 18, 2011.

Additional matter required by statute:

The State Environmental Quality Review Act requires the agency to make a determination of environmental significance. A negative declaration has been prepared in accordance with 6 NYCRR Part 617 and Article 8 of the Environmental Conservation Law.

Regulatory Impact Statement

1. STATUTORY AUTHORITY

Section 8-0113(2)(l) of the Environmental Conservation Law ("ECL") is the statutory authority for this rulemaking, and provides that "[t]he rules and regulations adopted by the Commissioner specifically shall include: … A model assessment form to be used during the initial review to assist an agency in its responsibilities under this article…" The model assessment forms are known as the full and short environmental assessment forms ("full EAF" and "short EAF"), respectively.

2. LEGISLATIVE OBJECTIVES

The amendments to 6 NYCRR Part 617, appendices A-C, which implement the SEQR process, advance the legislative objectives of ECL Sections 8-0101 and 8-0103 to "promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources" while giving "appropriate weight to social and economic considerations in public policy" by modernizing the full and short EAFs. Specifically, as described above, ECL Article 8, or SEQR, requires DEC to produce model forms to be used for the conduct of an environmental assessment. The legislative purposes behind the requirement for DEC to produce model forms are to ensure that all agencies subject to SEQR have a means to assess environmental impacts and to save other agencies the job of having to produce their own forms.

The existing forms are out-of-date and no longer adequately serve the purposes for which they were created. The full EAF has been unchanged for approximately 30 years, and the short EAF has been unchanged for approximately 20 years. During the past 30 and 20 years, respectively, DEC and many other governmental agencies have asked for clarifications of existing questions, formulated new questions, and suggested changes to the format. The existing forms fail to address environmental issues that have emerged since the promulgation of the existing forms. Finally, the existing forms are not compatible with current or likely future electronic information technologies. Specific changes include the following:

a) The EAF has been changed to make it more effective in gathering information for the analysis of zoning and planning actions, which is a universally recognized shortcoming of the existing forms.

b) The forms have been modified to address critical environmental subjects that have come to public consciousness since the forms were first created, such as hazardous waste and brownfield redevelopment, energy efficiency, climate change, smart growth, pollution prevention, and environmental justice.

c) DEC expects to take advantage of electronic technologies to allow a user to gain immediate access to the data needed to answer a question by linking directly to relevant spatial data (e.g., maps that identify the locations of important resources).

d) Part II of the full EAF has been simplified to make it easier to complete by simplifying the responses to "yes" or no" answers.

e) The need for a separate document for the determination of significance has been eliminated.

f) The instructions and format have been improved to also allow users to navigate through the form more efficiently by blocking similar questions under broad "gateway" or threshold questions. If the answer to any of the "gateway" questions is "no", then the remainder of the questions in the section will not require a response, and the user may skip to the next topic.

In addition to promulgation of new model forms, the DEC is preparing a workbook that will be hyperlinked to and accompany the new forms. DEC expects that the workbook will contain background information or illustrations for most of the questions, and links to resources to enable users to find answers for nearly all questions.

3. NEEDS AND BENEFITS

The proposed changes to the forms will aid regulators and the regulated community in a number of ways:

• With regard items "a" and "b" above, such proposed changes will make the forms more relevant to environmental analysis. The current versions of the forms do not adequately serve their functions of gathering and analyzing environmental information with respect to municipal planning and zoning actions or as to any of the environmental issues that have emerged since the forms were created.

• With respect to item "c", connecting the form through the internet ("hyper-linking") to spatial data will enable users to more thoroughly and inexpensively answer questions on the form that call for geographic information – which is much of Part I of the form. This change can be expected to improve accuracy and reduce time and expense in completing the forms.

• Items "d" , "e" and "f" are housekeeping measures to enable users to more easily complete the forms and eliminate the need for the preparation of a separate determination of significance.

4. COSTS

(a) Costs to Private Regulated Parties

Because SEQR is a law that requires compliance by government agencies, any effect on the regulated public is indirect. With respect to the SEQR forms, costs are difficult at best to estimate since the new forms simply replace the existing ones, and the time to complete either version depends on the scale and complexity of the action. The changes that allow applicants to more easily navigate the forms along with linkages to spatial data may result in a net savings of time and expense in completing the forms. While additional questions have been added to the forms, they reflect information gathering that now takes place in an iterative manner, which has in turn helped to make the regulatory process less efficient. The new forms consolidate information gathering and, essentially, let the forms "catch up" to existing practice, which DEC expects may lead to greater efficiencies in the environmental review process. At worst, while there may be a small increase in time for project sponsors to complete the new EAF, the added time in completing the forms can be expected to be offset by the decrease in time that is now spent in back-and-forth discussions or correspondence between project sponsors and governmental agencies to answer additional questions and clarify points that a new, more comprehensive EAF would answer at an earlier stage in the process.

DEC also expects cost and time savings by having the EAFs linked to spatial data on the internet as well as from the housekeeping type refinements to the form. In linking the forms to the internet and making spatial data that exists on the internet more directly available to ordinary users of the forms, it may lessen business reliance on expensive consultants to perform environmental analyses. Finally, DEC expects that the new forms will be linked to an EAF workbook, which will provide a ready source of interpretation and thereby save applicants time and money in answering the questions on the forms.

(b) Costs to Local Governments

Local governments, undertaking, funding or approving actions subject to SEQR, use the SEQR model forms. The same cost and benefits analysis described above applies to local governments. Additionally, while the new model full and short forms are each slightly lengthier than their existing counterparts, DEC expects that, on balance, they can be expected to improve data gathering and project reviews. DEC also anticipates that many more reviews will be based on the revised short form, leading to substantial economies over time for local governments. Improvements in data gathering alone will increase the efficiency of the SEQR process for local governments by allowing such information to be compiled at an early stage in the project review. The workbook will also aid local governments in answering the EAF questions.

(c) Costs to State Government

Inasmuch as State government agencies are subject to SEQR, the same cost analysis applies with equal force to these agencies. Costs to DEC for revising the EAF have been and will be in staff time spent in developing the new forms and in the rulemaking process. The staff costs are not easy to evaluate because the form revisions and rulemaking process has not and will not be a full time effort for anyone in the agency. Rather, there will be portions of time spent by several staff of the SEQR section and several other DEC legal and program division staff who will be participating, at times, with this rulemaking effort. As with most regulatory amendments, there will be some cost in retraining people in the SEQR process as a result of this rulemaking. The cost here is short term and minimal. Due to the frequent turnover that exists in local government offices, DEC has maintained a training and assistance program for those interested in receiving training and those who have specific questions relating to implementation of the law. DEC also cooperates with statewide organizations in the conduct of training. This amendment would require that some small amount of additional staff time be devoted to learning the new forms.

5. LOCAL GOVERNMENT MANDATES

The forms do not constitute a new mandate under Executive Order 17 as the forms are a replacement for existing forms and are model forms only. Section 617.20 states that Appendices A, B and C are model environmental assessment forms which may be used to satisfy this part or "... may be modified in accordance with sections 617.2 and 617.14 of this part." While the new forms are lengthier than the existing forms, their real effect is to consolidate early on in the process the data gathering that often takes place in an iterative fashion during the course of a project review. DEC is counterbalancing the additional upfront data gathering with a workbook that will make the forms easier for lay persons to complete.

Through stakeholder outreach, DEC has learned that local governments are presently using the long-form EAF in place of the short-form EAF for many Unlisted actions (where only the short-form is required). (Empirically, Unlisted actions comprise about seventy-five percent of the actions reviewed under SEQR by all agencies.) The reason for this is that a number of local governments view the existing short-form as too short or cursory to be useful, an opinion which DEC now shares. Improvements to the short-form will hopefully allow users of the EAF to make more use of the short-form for Unlisted actions, which can be expected to be a savings in paperwork and data gathering efforts.

As a result, this proposal will not impose any additional program, service, duty or responsibility upon any county, city, town, village, school district or fire district.

6. PAPERWORK

There will be not be any new reporting and monitoring requirements associated with this regulation. DEC proposes to merge the substance of the Visual EAF Addendum (6 NYCRR 617.20, Appendix B) into the full EAF and then eliminate the addendum. This will help reduce the multiplicity of forms.

7. DUPLICATION

The only relevant state rule is 6 NYCRR Part 617, appendices A-C, which is proposed to be modified. There is no relevant federal rule that applies to SEQR or the EAF. Consequently, there is no duplication, overlap, or conflict with State or Federal rules.

8. ALTERNATIVES

The other alternative considered was to take no action. DEC's past thirty years of experience with the full EAF and twenty years with the short EAF have shown that these amendments are warranted and that regulatory reform mandates would not be served by the "no action" alternative. The "no action" alternative would leave the DEC in a situation where it would be failing to acknowledge the numerous suggestions made to the DEC for changes to the EAF and the agency's own recognized, long-standing need for some of these changes.

9. FEDERAL STANDARD

There is no relevant Federal standard governing SEQR or the EAF.

10. COMPLIANCE SCHEDULE

The time necessary to comply with these regulatory amendments is limited to the time it would take to familiarize the public with the new forms. DEC will provide approximately six months or 180 days for the new forms to be completely substituted for the existing forms. For those individuals familiar with the current regulations and forms, training requirements will be minimal.

Regulatory Flexibility Analysis

1. EFFECT OF RULE:

This rulemaking consists of revised model forms to accompany the regulations promulgated pursuant to the State Environmental Quality Review Act ("SEQR"), which are used by most local governments in New York State to evaluate actions subject to SEQR¹. Small businesses would only be impacted by the form revisions when they are applicants for projects that require some form of government approval that is subject to SEQR.

2. COMPLIANCE REQUIREMENTS:

While SEQR has filing and publication requirements, it has no reporting requirements. The revised model forms do not change the filing and publication requirements. Additionally, DEC does not oversee local government compliance with SEQR.

3. PROFESSIONAL SERVICES:

DEC does not expect there to be a change in the types of professional services that local governments and small businesses will use to complete the forms. Presently, depending on the action, users of the form frequently rely on planners and engineers. Historically, DEC has provided training and educational materials to help users of SEQR. DEC expects to take another step in its educational outreach assistance incidental to promulgation of the new forms by development of a workbook that will be made available on the internet and that will assist EAF users in answering questions. In some instances, users may become less reliant on professional services as the DEC expects that the workbook will greatly aid the ordinary user in navigating the forms. Links to spatial data will enable ordinary uses to more efficiently and quickly gather geographic data.

4. COMPLIANCE COSTS:

Because SEQR is a law that requires compliance by government agencies, any effect on small business is indirect. With respect to the SEQR forms, costs are difficult at best to estimate since the new forms simply replace existing ones, and the time to complete either version will depend on the scale and complexity of the action. Changes that allow applicants to skip through irrelevant sections along with linkages to spatial data may actually result in a net savings of time and expense in completing the forms. At worst, while there may be a small increase in time for project sponsors to complete the new EAF, the added time in completing the forms can be expected to be offset by a decrease in time that is now spent in back-and-forth discussions or correspondence between project sponsors and governmental agencies to answer additional questions and clarify points that a new, more comprehensive EAF would answer at an earlier stage in the process. Adding to the comprehensiveness of the form, DEC proposes to merge the substance of the Visual EAF Addendum (6 NYCRR 617.20, Appendix B) into the full EAF and then eliminate the separate form. This will help reduce the multiplicity of forms. Finally, DEC expects that the new forms will be linked to the EAF workbook, which will provide a ready source of explanations plus links to data sources, thereby saving applicants time and money in answering the questions on the forms. DEC has a long running SEQR training program for local government officials and the public, although it has been pared back in recent times by travel restrictions and staff reductions. DEC has begun, and expects to continue, to increase training through its website and other electronic technologies.

Through stakeholder outreach, DEC has learned that local governments are presently using the long-form EAF in place of the short-form EAF for many Unlisted actions (where only the short-form is required). (Empirically, Unlisted actions comprise about seventy-five percent of actions reviewed under SEQR statewide, by all agencies.) The reason for this is that a number of local governments view the existing short-form as too short or cursory to be useful, an opinion which DEC now shares. Improvements to the short-form will hopefully allow users of the EAF to make more use of the short-form for Unlisted actions, which can be expected to be a significant savings in paperwork and data gathering efforts.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

DEC is strongly committed to using computer and internet technology to make the EAF forms as technologically accessible as possible. For some time now, the forms have been available in "fill out on-line" form. DEC expects to develop a workbook of narrative explanations to assist users in responding to questions, including hyper-linking questions on the new form to relevant spatial data. . DEC also expects that the use of electronic technologies and the internet will assist average users, small business and local governments to more easily be able to complete the forms without assistance of costly consultants and experts.

6. MINIMIZING ADVERSE IMPACT:

There are no adverse impacts. The forms replace other existing forms. The forms have been redesigned to allow users to more easily skip through irrelevant questions by using so-called gateway questions. Technological improvements in data gathering and sharing are expected to foster expanded environmental analysis capacity at the local government level. From a local government perspective, the expanded environmental analysis is a positive development as local governments often rely on the EAFs to assess their actions.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

In fall 2008, DEC circulated a draft, revised EAF for stakeholder review. Stakeholder outreach included a mass mailing that was sent to a large stakeholder mailing list including consultants who regularly represent local governments and businesses in permitting matters that are subject to SEQR. Many comments were received and many of the comments resulted in changes to the EAF. Staff continued its outreach with an innovative on-line forum bulletin board, proposed by researchers at the State University of New York at Albany (SUNY) Communications Department in conjunction with Texas Tech University. With DEC's endorsement but under the day-to-day management of the researchers, members of the public were invited to participate in an electronic deliberation about the proposed revisions. The deliberation took place over a one-month period using an online message board. The participants were invited to comment on and discuss the new draft of the revised EAF on the computer bulletin board. In contrast to earlier stakeholder processes, the SUNY/Texas Tech web venue scheme permitted discussions to be conducted state-wide and simultaneously, allowing for back and forth discussion among the participants.

¹ Under the SEQR regulations (specifically sections 617.2, 617.20 and 617.14 of 6 NYCRR), local governments may adopt their own forms “provided the scope of the locally created form is as comprehensive as the model.”

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS

The rulemaking is statewide. Thus, it applies to all rural areas.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES

Reporting, recordkeeping and other compliance requirements are the same as for the existing forms.

a) Reporting requirements

While the State Environmental Quality Review Act ("SEQR") has filing and publication requirements, it has no reporting requirements. Additionally, the Department of Environmental Conservation ("DEC") does not oversee local government compliance with SEQR.

b) Other compliance requirement

While SEQR has filing and publication requirements, it does not have reporting requirements. The revised model forms do not change the filing and publication requirements. Additionally, DEC does not oversee local government compliance with SEQR.

c) Professional services

DEC does not expect there to be a change in the types of professional services that local governments and small businesses will use to complete the forms. Presently, depending on the action, users of the form typically rely on planners and engineers. Historically, DEC has provided training and educational materials to help users of SEQR. DEC expects to take another step in its educational outreach assistance incidental to promulgation of the new forms by publishing an on-line workbook that will assist form users in answering questions.

3. COSTS

Because SEQR is a law that requires compliance by government agencies, any effect on rural areas is mainly to local governments. With respect to the SEQR forms, costs are difficult at best to estimate since the new forms simply replace the existing ones and the time to complete them depends on the scale and complexity of the action. Changes that allow applicants to skip through irrelevant sections along with linkages to spatial data may actually result in a net savings of time and expense in completing the forms. At worst, while there may be a small increase in time for local governments and applicants to complete the new EAF, the added time in completing the forms can be expected to be offset by the decrease in time that is now spent in back-and-forth discussions or correspondence between project sponsors and governmental agencies to answer additional questions and clarify points that a new, more comprehensive EAF would answer at an earlier stage in the process. Adding to the comprehensiveness of the EAF forms, DEC proposes to merge the substance of the Visual EAF Addendum (6 NYCRR 617.20, Appendix B) into the full EAF and then eliminate the addendum. This will help reduce the multiplicity of forms.

Finally, DEC expects that the new forms will be linked to an EAF workbook, which will provide a ready source of interpretation and thereby save applicants time and money in answering the questions on the forms. DEC has a long running SEQR training program for local government officials and the public though this has been pared back in recent times by travel restrictions and staff reductions. In response, DEC has increased the on-line component of its training program.

4. MINIMIZING ADVERSE IMPACT

There are no adverse impacts to rural areas. The forms replace other existing forms. Technological improvements in data gathering are expected to offset the expanded environmental analysis which the forms provide. From a local government perspective the expanded environmental analysis is a positive development as local governments often rely on the EAFs to assess their actions. The forms have been redesigned to allow users to more easily skip through irrelevant questions by using so-called gateway questions.

Through stakeholder outreach, DEC has learned that local governments are presently using the long-form EAF in place of the short-form EAF for many Unlisted actions (where only the short-form is required). (Empirically, Unlisted actions comprise about seventy-five percent of the actions reviewed under SEQR by all agencies.) The reason for this is that some local governments view the existing short-form as too short or cursory to be useful, an opinion which DEC now shares. Improvements to the short-form will hopefully allow users of the EAF to make more use of the short-form for Unlisted actions, which can be expected to be a savings in paperwork and data gathering efforts.

5. RURAL AREA PARTICIPATION

In fall 2008, DEC circulated a draft, revised EAF for stakeholder review. Stakeholder outreach included a mass mailing that was sent to a large stakeholder mailing list including consultants who regularly represent local governments and businesses in permitting matters that are subject to SEQR. DEC received many comments, and a majority of them were addressed within a redrafted version of the new EAF. Staff continued its outreach with an innovative on-line forum bulletin board, proposed by researchers at the State University of New York at Albany (SUNY) Communications Department in conjunction with Texas Tech University. The deliberation took place over an approximately three-week period, using an online message board. Essentially, the participants were invited to comment on and discuss the new draft of the revised EAF on the computer bulletin board. Even though the deliberation was statewide and not targeted specifically at rural areas, some comments were received that would be of particular importance to rural areas.

Job Impact Statement

The updating of the State Environmental Quality Review Act (SEQR) environmental assessment forms (EAF) should have no impact on existing or future jobs and employment opportunities. EAFs are expected to be completed in part by project sponsors and ultimately by lead agencies to determine whether a particular action may have a potentially significant, adverse impact on the environment. If the lead agency answers in the affirmative, then it must prepare or cause to be prepared an environmental impact statement the purpose of which is to evaluate the identified impacts and how to avoid or mitigate them. Local governments using EAFs or businesses who may fill in portions of the forms would be required to continue to do this, whether DEC revises the forms or continues to use the existing forms. While there may be a small increase in time to complete the new EAFs, this time should be offset by the decrease in time that is now spent in back-and-forth discussions or correspondence between project sponsors and governmental agencies to answer additional questions and clarify points that a new, more comprehensive EAF would include from the beginning. DEC also expects to make greater use of electronic information technologies with the new forms which may help to hasten the information gathering process, which is the object of the forms. DEC proposes to merge the substance of the Visual EAF Addendum (6 NYCRR 617.20, Appendix B) into the full EAF (6 NYCRR 617.20, Appendix A), and then eliminate the Visual EAF form. This will help reduce the multiplicity of forms.

A Job Impact Statement is not submitted with this rulemaking proposal because the proposal will not have a "substantial adverse impact on jobs or employment opportunities," which is defined in the State Administrative Procedure Act Section 201-a to mean "a decrease of more than one hundred full-time annual jobs and employment opportunities, including opportunities for self-employment, in the state, or the equivalent in part-time or seasonal employment, which would be otherwise available to the residents of the state in the two-year period commencing on the date the rule takes effect." The proposed changes to the EAFs are not expected to have any such effect and most likely will have no impact on jobs or employment opportunities.