Ten Things To Know About New York Environmental Law When Planning To Do Business Here

New York has a wide variety of unique laws governing environmental matters, some that tend to streamline reviews (like a consolidated review process for power plants) and others that add additional layers of government oversight (like environmental impact review for virtually all state and local decision-making). This advisory outlines ten important components of this environmental regulatory scheme, including several new and noteworthy legal developments.

1. Environmental Review

   New York State is one of about twenty states with "mini NEPAs"-- laws that require government agencies to consider the environmental impacts of their actions prior to issuing approvals or making funding decisions. The State Environmental Quality Review Act ("SEQRA") is far-reaching and requires all government entities at the state, county and local level to review the environmental impacts of small and large actions.1 These actions include land use approvals, permits and finance decisions. Because SEQRA does not permit agencies to condition their contracts on subsequent environmental review, a deal must often await the conclusion of environmental review.

   The New York State Department of Environmental Conservation ("DEC") began the process to amend SEQRA regulations in July 2012—the first such amendments in many years.2 The agency's goal is to clarify the contents of an environmental impact statement ("EIS"), lower the thresholds for actions that presumptively require an EIS and create new categories of exempt actions related to smart growth and green buildings, which the State wants to encourage. The final date for the regulatory changes is not clear.

2. Freshwater Wetlands

   New York State has a Freshwater Wetlands Law3 that is both narrower and broader than the U.S. Clean Water Act. New York's law is broader in that it extends to inland, isolated wetlands and adjacent buffer zones that are not wetlands; however, it is narrower in that it governs only wetlands of 12.5 acres or more, except for wetlands of "unusual local importance" as determined by DEC.4 The U.S. Clean Water Act has no such size limitation.

   Climate change is impacting the State's regulation of wetlands in a variety of ways, including encouraging more protections and acquisition of sensitive locations. There is likely to be more sensitivity to the importance of wetlands and more litigation as cities and the State acquire and condemn wetlands for stormwater and flood control or strengthen regulatory protections.5 At the same time, the State is making it easier for property owners to rebuild existing homes damaged by Hurricane Sandy in wetlands and wetland buffers. In March 2013, the DEC issued a temporary, general permit under the Freshwater Wetlands Law allowing reconstruction of houses in freshwater wetland adjacent areas that were affected by Hurricane Sandy in October 2012.6

3. Hazardous Substances

   New York's Inactive Hazardous...