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Part 490, Projected Sea-Level Rise - Assessment of Public Comments 2016

Assessment of Public Comments

6 NYCRR Part 490, Projected Sea-Level Rise Comments Received from November 30, 2016 through December 30, 2016

General Support

Comment 1: Ten of the fourteen parties expressed general support for adoption of sea-level rise projections. (Dunn, Freudenberg, Gallay, Gruskin, Noble, Ross, Tabak, Wentz and Zarrilli).

Response to Comment 1: Thank you for your comments.

Statewide Consistency

Comment 2: 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. (Dunn, Zarilli)

Response to Comment 2: While this comment does not address the revisions to the proposed regulation, the Department agrees. See Response to Comment 2, Assessment of Public Comments Received from November 10, 2015 through December 28, 2015 ("Initial APC").

Additional Requirements and Regulations Needed

Comment 3: We are astonished that this proposal comes with no government mandates; we ask that this proposal be actively used to cut costs to NY State taxpayers who are currently investing heavily in developments in areas at high risk of sea-level inundation. (Donnelly)

Response to Comment 3: This comment does not address the revisions to the proposed regulation, but see Response to Comment 3, Initial APC.

Comment 4: DEC should apply information in Part 490 to administration of the state Brownfield Cleanup Programs to prevent any further taxpayer investment in housing developments in coastal areas that will be inundated by high water table and eventually higher water levels. (Donnelly)

Response to Comment 4: This comment does not address the revisions to the proposed regulation, but see Response to Comment 3, Initial APC.

Basis of Projections

Comment 5: These projections represent the best currently available science. (Dunn, Freudenberg, Gruskin, Noble, Tabak, Wentz and Zarrilli)

Response to Comment 5: While this comment does not address the revisions to the proposed regulation, the Department agrees. See also Response to Comment 8, Initial APC.

Comment 6: DEC should extend projections through 2200. (Gallay)

Response to Comment 6: This comment does not address the revisions to the proposed regulation. Regardless, the Department acknowledges the need to consider sea-level rise beyond 2100 in the design of long-lived infrastructure and land-use changes. As explained in the RIS and in Response to Comments 7, 8, and 15 in the Initial APC, the Department's projections in Part 490 are based on the ClimAID Report. The ClimAID Report, however, does not include projections through 2200. Moreover, New York State-specific, peer-reviewed projections through 2200 are not otherwise available. Therefore, at this time, the Department has not identified any appropriate science-based projections upon which to base State projections beyond 2100 in Part 490.

Furthermore, Environmental Conservation Law (ECL) § 3-0319 requires the Department to update its sea-level rise projection regulations at least every five years. Such future updates may include consideration of extended projections beyond 2100 and through 2200.

Finally, the Department, in consultation with the Department of State, is developing implementation guidance that will describe how to consider sea-level rise in the programs specified by CRRA and will consider including guidance on use of long-range projections not included in Part 490.

Comment 7: DEC should include a storm-surge "reminder" with the sea level projections. (Gallay)

Response to Comment 7: This comment does not address the revisions to the proposed regulation, and CRRA does not include a provision for the Department to include a storm-surge "reminder" in the sea-level rise projections in Part 490. However, as required by CRRA, the Department, in consultation with the Department of State, is developing implementation guidance that will describe how to consider sea-level rise, storm surge and flooding in the programs specified by CRRA.

Comment 8: You should be concerned with the coming cold period and what it means for New York residents, not making plans for any global warming. (Lisenbee)

Response to Comment 8: This comment does not address the revisions to the proposed regulation. Moreover, no scientific information exists to suggest an imminent global cooling period.

Alternative Approach Suggested

Comment 9: The Department should adopt a "pledge and review" approach to establish sea-level rise policy. Sea-level rise planning values would be based on observed rates of rise at specified tide gauges during 5-year periods and would be adjusted according to the observed rates of sea-level change during the most recent 5-year period at the selected gauges. (Caiazza)

Response to Comment 9: This comment does not address the revisions to the proposed regulation, but see Response to Comment 9, Initial APC.

Rulemaking Procedure

Comment 10: The regulated community cannot meaningfully comment on the sea-level rise projection numbers in the absence of the remainder of the regulatory scheme. (Caiazza, Hamling)

Response to Comment 10: This comment does not address the revisions to the proposed regulation, but see Response to Comments 3, 10, 11, and 12, Initial APC.

Comment 11: This is an improper and illegal rulemaking as the proposed regulation has no context and cannot be understood by the regulated community. (Hamling)

Response to Comment 11: See response to Comments 3, 10, 11, and 12, Initial APC.

Comment 12: 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. (Hamling)

Response to Comment 12: This comment does not address the revisions to the proposed regulation, but see Response to Comments 3, 10, 11, and 12, Initial APC.

Comment 13: Although the Department's webpage states that all of the regulatory documents are available on the Department's website, the required regulatory flexibility analysis and the rural area flexibility analysis are not included. (Hamling)

Response to Comment 13: See Response to Comment 13, Initial APC. Moreover, while a Rural Area Flexibility Analysis (RAFA) and a Regulatory Flexibility Analysis for Small Businesses and Local Governments (RFASBLG) are not required for Part 490, statements in lieu of a RAFA and RFASBLG are available on the Department's website.

Comment 14: Enactment of Part 490 as a stand-alone regulation results in improper segmentation. Proposed Part 490 enacts numerical standards that will, pursuant to the express terms of the CRRA, be utilized as part of permitting requirements for thirteen (13) separate regulatory programs administered by the Department. Promulgating these numerical standards without considering the entirety of the CRRA regulatory program, as a matter of law, fails to consider the entire "action" as required by SEQRA. (Hamling)

Response to Comment 14: See response to Comment 14, Initial APC.

Comment 15: Notice of Revised Rulemaking provides different contact information
for submission of comments on or inquiries related to the proposed Part 490 than the notice placed in the Environmental Notice Bulletin on November 30, 2016.

Response to Comment 15: The Department responded to inquiries and accepted comments addressed to either of the two e-mail addresses provided.

Comment 16: This rulemaking is improper because, although it is labeled a "revised rulemaking," it contains no "substantial revisions" as is required to issue a revised rulemaking. (Hamling)

Response to Comment 16: As described in the Regulatory Impact Statement (RIS) and in Response to Comments 6, 7, 9, and 15 of the Initial APC, the Department made substantial revisions to Part 490 in response to public comments received on the initial notice of proposed rulemaking.

First, the Department substantially revised the definition of "high projection" in subdivision 490.3(i). Pursuant to this revision, in addition to being "very unlikely" to occur, the "high projection" is defined as being "associated with high rates of melt of land-based ice." This revision is intended to acknowledge the fact that, if the high projection is reached by a given time interval, it would be associated with high rates of melt of land-based ice. Second, the Department substantially revised the definition of the term "low projection" in subdivision 490.3(m). Pursuant to this revision, in addition to being "very likely" to be exceeded, the "low projection" is defined as being "consistent with historical rates of sea-level rise." This revision accounts for the fact that future sea-level rise is not projected to be consistent with historical trends, but is instead projected to accelerate with increased warming.

As described in the RIS and in Response to Comments 3, 10, 11, 12, 13, and 14 of the Initial APC, Part 490 will serve as common source of sea-level rise projections for consideration within the programs specified by CRRA. The primary scope and purpose of this regulation is to establish science-based projections of sea-level rise, rather than to establish numerical standards or impose any requirements on any entity. Especially given this unique scope and purpose of Part 490, the two changes described above amount to substantial revisions because they materially alter the regulation's meaning and effect. These changes directly affect the meaning and sole substance and topic of the regulation: the science-based projections of sea-level rise. By adding new language that changes and expands upon the scientific basis and significance of particular projection levels in the regulation, these changes to Part 490 materially alter both the meaning and effect of the overall regulation.

In addition, the Department made changes to Sections 490.1 and 490.2 to expand upon the purpose and applicability of Part 490. The change to the applicability provision in Section 490.2 included the addition of "funding" to the types of programs covered by the regulation. This change also amounts to a substantial revision, because a change that expands the applicability of the regulation materially alters the regulation's effect.

Finally, the Department determined that, because of the public interest in and comments on the initial proposed rule, as well as the changes made to Part 490, the rule would benefit from additional opportunity for public review, as required by the State Administrative Procedure Act.

Definitions

Comment 17: We agree with the changes to the definitions of the high and low projections. (Caiazza)

Response to Comment 17: Thank you for your comment.

Comment 18: Definitions should more clearly articulate the likelihood of that rate of sea-level rise occurring. (Gruskin)

Response to Comment 18: See response to Comment 15, Initial APC.

Comment 19: DEC should clarify the potential to exceed the high projection. DEC should emphasize the lower probability, higher consequence outcomes and de-emphasize low and medium projections. (Gallay, Wentz)

Response to Comment 19: The Department's intent with regard to Part 490 is to provide projections of sea-level rise that represent the best available scientific research, specific to New York State, in a policy-neutral manner. The Department, in consultation with the Department of State, is developing implementation guidance that will describe how to consider sea-level rise, in the programs specified by CRRA, including recommendations on the specific sea-level rise projections in Part 490 to be considered. As explained in Response to Comment 15, Initial APC, probabilities of specified amounts of sea-level rise cannot be assigned based on available peer-reviewed, New York State-specific information. Further, there is not general scientific agreement that ten feet of sea-level rise by 2100, as suggested by one commenter, is physically possible.

Adopt Part 490 Quickly

Comment 20: DEC is currently in violation of a clear statutory directive to adopt sea-level rise projections by January 1, 2016 to complete a mandatory duty. Further, the CRRA applies automatically to all permit applications received by DEC after January 1, 2017. Thus, the agency's failure to adopt projections and guidance frustrates efforts by permit applicants to remain in compliance with the law. (Freudenberg, Gallay, Gruskin, Wentz)

Response to Comment 20: The Department acknowledges it did not adopt this regulation by January 1, 2016, but believes allowing sufficient time for assessment of all available scientific information and opportunity for robust public input has been critical to development of this regulation. Moreover, during this time, the Department, in consultation with the Department of State, has been developing guidance regarding the implementation of CRRA, including guidance that will describe how to consider sea-level rise, storm surge and flooding in the programs specified by CRRA. The adoption of Part 490, together with the CRRA implementation guidance, will facilitate permit applicants' and state agencies' consideration of sea-level rise, storm surges, and flooding in the programs specified by CRRA, in compliance with the law.

Waste of Funds

Comment 21: I do not support this proposal. It is a waste of NY State funds. (Hutchison)

Response to Comment 21: This comment does not address the revisions to the proposed regulation. In any case, the proposed regulation does not directly require the expenditure of any New York State funds. Moreover, pursuant to ECL § 3-0319, which was added by CRRA, the Legislature directed the Department to adopt a regulation establishing science-based State sea-level rise projections.

List of Commenters

Organization Name
1 City of New York Daniel Zarrilli
2 Environmental Energy Alliance of New York Roger Caiazza
3 Friends & Residents of Greater Gowanus Marlene Donnelly
4 N/A Jay Ross
5 Kingston Conservation Advisory Council Julie Noble
6 N/A Len Lisenbee
7 New York Construction Materials Association David Hamling
8 Regional Plan Association Robert Freudenberg
9 Hudson Riverkeeper et al.* Paul Gallay
10 N/A Robert Hutchison
11 Sabin Center for Climate Change Law Jessica Wentz
12 Scenic Hudson Nava Tabak
13 Seatuck Environmental Association Maureen Dunn
14 The Nature Conservancy
Stuart Gruskin

*Submitted on behalf of Citizens Campaign for the Environment; Hudson Riverkeeper; Natural Resources Defense Council; New York/New Jersey Baykeeper; Peconic Baykeeper; Super Law Group, LLC



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