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Part 490, Projected Sea-Level Rise - Assessment of Public Comments Summary

Assessment of Public Comments Summary

6 NYCRR Part 490, Projected Sea-Level Rise Comments Received from November 10, 2015 through December 28, 2015

The Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014 (CRRA), is intended to ensure that decisions regarding certain State permits and expenditures consider climate risk, including sea-level rise. CRRA created a new Environmental Conservation Law (ECL) § 3-0319 that requires the Department of Environmental Conservation (Department) to adopt regulations establishing science-based State sea-level rise projections. To fulfill this statutory requirement, the Department is establishing a new 6 NYCRR Part 490, Projected Sea-level Rise (Part 490). Part 490 establishes projections of sea-level rise in three specified geographic regions over various time intervals, but does not impose any requirements on any entity.

The Department's sea-level rise projections in Part 490 are based on sea-level rise projections included in Horton et al. (2014 ), prepared for the New York State Energy Research and Development Authority, also known as the ClimAID report. Pursuant to CRRA, the Department, in consultation with the Department of State, is also developing implementation guidance that will describe how to consider flooding, storm surge, and the sea-level rise projections in Part 490 in the programs specified by CRRA.

The Department formally proposed Part 490 on November 10, 2015 and accepted public comments through December 28, 2015. The Department received public comments from nine individuals during the public comment period. The Department has reviewed, summarized, and responded to all relevant public comments received during the public comment period. In response to comments, the Department substantially revised the express terms of Part 490, including the definitions of the terms "low projection" and "high projection." The Department received two public comments outside of the public comment period, which the Department has also addressed despite their being outside the scope of the rulemaking.

The vast majority of commenters supported the approach the Department has taken in developing Part 490. In particular, many commenters expressed support for basing State projections on the ClimAID report, including a high projection of approximately 6 feet of sea-level rise by 2100. Moreover, the City of New York described the benefits of statewide consistency, including that adoption of projections consistent with New York City Panel on Climate Change projections will allow for coordinated decision making and avoid unnecessary confusion of competing projections. The projections in Part 490 are based on the ClimAID report, including a high projection of approximately 6 feet of sea-level rise by 2100, and are consistent with New York City Panel on Climate Change projections.

Some commenters noted that no further requirements will be imposed by Part 490, and stated that they cannot understand why the adoption of scientific sea-level rise projections imposes no requirements on anyone. As explained in the Regulatory Impact Statement (RIS), the Department is promulgating Part 490 pursuant to ECL § 3-0319. This provision does not authorize the Department to impose additional requirements through this Part 490 regulation. In addition, pursuant to CRRA, the Department, in consultation with the Department of State, is also developing implementation guidance that will describe how to consider sea-level rise in the programs specified by CRRA. While Part 490 itself does not impose any requirements, it provides a common source of sea-level rise projections for consideration within the programs specified by CRRA.

One commenter suggested that six foot of sea level rise is so unlikely that it does not reach the threshold of "plausible." This commenter stressed the uncertainty regarding the rate of future ice melt, including the lack of consensus for ice sheet collapse, and the uncertainty related to the timing of sea-level rise in the event of rapid ice melt. The Department acknowledges the lack of expert consensus regarding the likely rate of ice sheet melt and potential for ice sheet collapse. In response to this and other comments, the Department substantially revised the definition of the term "high projection" to include that it is "associated with high rates of melt of land-based ice."

In any case, Part 490 includes a range of projections of sea-level rise. The projection distribution constitutes a range suitable for risk-based planning and review of projects of varying projected life times and criticality. Part 490 explicitly defines the "high projection" in the regulation as being "very unlikely" to occur. The Department maintains that it is prudent to include a high, albeit unlikely, projection to enable consideration of the consequences of low-probability but high-consequence events. The manner in which the high projection should be considered in the context of particular projects will be addressed through the CRRA implementation guidance currently being developed by the Department in consultation with the Department of State.

One commenter stated that, in order for the six foot of sea-level rise projection to be considered credible, the RIS must explain why certain conclusions of the Intergovernmental Panel on Climate Change (IPCC) were "ignored." The Department carefully reviewed these IPCC projections, which are based on process models that assume static or linear rates of ice sheet loss over Greenland and Antarctica. As explained in the RIS, for numerous reasons, the Department based the projections in Part 490 on the ClimAID projections, rather than on other more conservative, less protective projections based primarily on process modeling. As stated in the RIS, the Department acknowledges that the highest projections developed by some other studies are lower than the ClimAID high projections. The ClimAID projections incorporate expert judgment of ice loss based on accelerating rates of melt and seaward movement of ice, positive feedbacks and non-linearities that are not necessarily accounted for in the process-based and statistical modeling approaches described by the IPCC. In any case, Part 490 explicitly defines the high projection as "very unlikely."

One commenter suggested that the Department should adopt a "pledge and review" approach to sea-level rise values, under which projections would be based on observed rates of rise at specified tide gauges during 5-year review periods. First, ECL § 3-0319, as added by CRRA, requires the Department to consider certain specified information and reports in promulgating science-based State sea-level rise projections. Second, ECL § 3-0319 requires the Department to update its sea-level rise projection regulations at least every five years, which the Department will do through future action.

Moreover, while the Department has not yet determined the precise review process it will use, it has concerns with the pledge and review approach suggested. The first is its reliance on a limited number of tide gauges, given that local factors can affect sea-level change at individual stations so that significantly different trends are indicated, even from proximate stations. Secondly, the pledge and review approach would yield planning values based only on historical trends in rise or rates of rise, whereas CRRA requires consideration of future climate risk. As described in the RIS, the rate of sea-level rise is not projected to be constant based on historical values but is instead projected to accelerate with increased warming. In response to this and other comments, the Department substantially revised the definition of the term "low projection" to include that it is "consistent with historical rates of sea-level rise." Projections based solely on the pledge and review approach could be easily skewed by short-term, localized phenomena, and the approach would fail to account for acceleration of sea-level rise that would occur with projected warming.

One commenter raised several issues regarding the rulemaking procedure used to adopt Part 490. First, for example, this commenter claimed that this is an improper and illegal rulemaking as the proposed regulation has no context and cannot be understood by the regulated community. The Department disagrees, as this clam is incorrect. The promulgation of Part 490 complies with the State Administrative Procedure Act (SAPA) and all other rulemaking requirements. The Legislature established the context of Part 490 through the statutory language of CRRA. Moreover, the context of the regulation is further described in the RIS.

Furthermore, , even before the formal proposal of Part 490 pursuant to SAPA, the Department held an extensive public stakeholder outreach process. As summarized in the RIS, this process included five public informational and listening sessions, at which Department staff presented background on CRRA, including the overall context of the regulation.

In addition, as explained in the RIS, Part 490 does not impose any requirements on any entity. Part 490 implements one component of CRRA by providing a common source of sea-level rise projections for consideration within the programs specified by CRRA. The adoption of Part 490 is the first step in the overall process to implement CRRA, as the Department is also currently preparing guidance, in consultation with the Department of State, regarding the implementation of CRRA. This guidance will address, among other things, how consideration of the sea-level rise projections in Part 490 should be incorporated into each of the permitting and other programs enumerated in CRRA. CRRA requires this guidance to be adopted by January 1, 2017. Applicants for relevant permits or funding programs will not be required to consider Part 490's sea-level rise projections pursuant to CRRA until such guidance is adopted.

Second, this commenter also argued that precluding meaningful input while simultaneously putting into place a binding requirement affecting future regulatory enactments is illegal and is an improper attempt to insulate the regulation from challenge. Through the promulgation of Part 490, the Department neither precluded meaningful input nor put into place a binding requirement affecting future regulatory enactments. Rather than precluding meaningful input, as explained in the RIS, the Department provided several opportunities for input on Part 490, including through stakeholder outreach before the formal proposal of the regulation for public comment. Moreover, the Department will also provide additional opportunities for meaningful input on future CRRA implementation actions. Furthermore, the Department reiterated that Part 490 does not impose a binding requirement affecting future regulatory enactments. Finally, to the extent the Department undertakes any future regulatory enactments that incorporate Part 490, such future action will be subject to SAPA and other procedural rulemaking requirements, including an opportunity for public comment.

Third, the commenter also argued that the regulated community cannot meaningfully comment on the sea-level rise projection numbers in the absence of the remainder of the regulatory scheme. The RIS describes the manner in which Part 490 fits into the overall scheme of CRRA. The Legislature established the context of Part 490 through the statutory language of CRRA.

A primary reason for adopting Part 490 first, prior to the finalization of CRRA implementation guidance, is the statutory language of CRRA itself. Part 490 is the first step in the overall process to implement CRRA. The Department, in consultation with the Department of State, is currently developing CRRA implementation guidance, and applicants for relevant permits or funding programs will not be required to consider Part 490's sea-level rise projections pursuant to CRRA until such guidance is adopted.

The Department recognizes that the regulated community is interested in both the sea-level rise projections numbers in Part 490, as well as the manner in which consideration of these projections will be incorporated into the programs specified by CRRA. The Department will provide additional opportunities for meaningful input on future CRRA implementation actions. Furthermore, to the extent the Department undertakes any future regulatory enactments that incorporate Part 490, such future action will be subject to SAPA and other procedural rulemaking requirements, including an opportunity for public comment.

Finally, two commenters suggested that definitions should more clearly articulate the likelihood of particular rates of sea-level rise occurring. As described in the RIS, the projections included in Part 490 are not associated with specific probabilities. There is no way to describe an accurate probability distribution for various levels of future sea-level rise from the ClimAID projections. Rather, the Department's terminology and definitions provide a qualitative indication of the relative likelihood of the specified rise. The Department substantially revised the definitions of the terms "low projection" and "high projection" in response to these and other comments.

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