COMG611-61

Topics for Exam # 2

Topics
CEQR/ULURP
1) Differences: CEQR vs. SEQRA e.g. Special NYC focus (building shadows, parking,
etc.)

CEQR procedures apply to proposed discretionary actions taking place within the
boundaries of NYC
CEQR adapts and refines the SEQRA rules to take into account the special
circumstances of New York City.
CEQR: give guidance on selection of a lead agency, adds scoping requirements,
promotes use of NYCs CEQR Technical Manual in conducting environmental
reviews

2) Discretionary actions vs as of right (e.g. need for a zoning variance by developer

would involve a discretionary action vs granting of permit as of right i.e. developer just
pays app. fee, etc = no discretionary action = not subject to SEQRA/CEQR)

Discretionary action (yes/no): need for a zoning variance by developer

as of right: granting permit, developer pays application fee.
CEQR is process by which agencies of the City of New York review proposed
discretionary actions to identify the effects those actions may have on the
environment
No discretionary action = not subject to SEQRA/CEQR

3) What actions are covered by CEQR?

Discretionary actions:
-directly undertaken by a NYC agency
-funded by a NYC agency
-approved by a NYC agency
Initiated by:
-NYC
-private applicant
Just as for SEQRA, Ministerial actions (e.g. granting of a building permit w/o a
variance) are not CEQR actions
Type II SEQRA actions not subject to CEQR (e.g. maintenance or repair
involving no substantial changes in an existing structure)

4) Know some of the 20 impact areas to be addressed by a CEQR impact statement

know some general analysis details on 1 or 2 impact areas (see the CEQR Technical
Guidance Manual)
Chapter 7: Open Space
Under CEQR, an open space analysis is conducted to determine whether a proposed
project would have a direct impact resulting from the elimination or alteration of open
space or an indirect impact resulting from over taxation of an available open space. Open
space is either publicly or privately owned land that is publicly accessible and available
for leisure, play, or sport, or is set aside for the protection or enhancement of the natural
environment. Furthermore, open space includes categories such as active and passive
open space. Active open space is used for sports, exercise, or active play classified as
active open space, while passive open spaces are used for relaxation, such as sitting or
strolling. Ultimately, an open space analysis focuses on officially designated existing or
planned public open space.
A preliminary assessment is helpful when the open space assessment can be matched to a
particular user group. The following technique examines the change in total population
relative to total open space in the study area to determine whether the elimination of open
space or increase in user population would significantly reduce the amount of available
open space for an areas population. First, the total population in the study area at the
time of the most recent decennial census is calculated with an adjustment based on
subsequent population estimates. The total open space in the study area is then calculated
and an open space ration (R) in the study area is calculated using the following equation:

Chapter 8: Shadows
A shadow assessment is used to assess whether new structures may cast shadow on
sunlight sensitive publicly accessible resources or other resources of concern such as
natural resources, and to assess the significance of their impact. However, a majority of
the projects that are subject to CEQR usually do not require a detailed shadow analysis. A
shadow assessment begins with a preliminary screening assessment in order to ascertain
whether said projects shadow may happen to reach any aforementioned sunlightsensitive resources throughout a given year. Like with most preliminary assessments if it
does not eliminate the possibility, then a detailed shadow analysis is required to
determine the scope and duration of the shadow resulting from the project.
Chapter 15: Energy
CEQR requires that an EIS include discussion of the effects of a proposed work on the
conservation and/or use of energy (if significant). Projects are encouraged to examine
benefits of energy efficiency measures and feasibility of co, tri, and on-site renewable
generation. Analyses are focused on a projects consumption of energy and potential
effects on the transmission of energy that may result includes electricity, fossil fuels,
nuclear power, hydroelectricity, and other miscellaneous fuels.

Preliminary analysis occurs by observing operational energy, or the amount of energy

consumed annually after the project is operational (heating, cooling, lighting, pumps,
fans, domestic hot water, plug loads, and elevators). Energy in this analysis is measured
in British Thermal Units (BTU) through utilization of an energy conversion calculator
(via the U.S. Energy Information Administration).
Energy consumption can be modeled through programs such as Trace, HAP, DOE-2, and
eQuest. Projects subject through the Greenhouse Gas assessment should estimate energy
consumption through energy modeling, usually undertaken by a projects
architect/engineer for comparable buildings. Table 15-1 in the CEQR manual can be used
to estimate average annual whole-building energy use in New York City, categorizing
facilities by building type (commercial, industrial, institutional, and large & small
residences)
Chapter 18: Greenhouse Gas Emissions and Climate Change
New York Citys sustainability program, PlaNYC, seeks to reduce greenhouse gas (GHG)
emissions (30% below 2005 levels by 2030) and increasing the Citys resilience to
climate change effects. At the Citys request, the Urban Green Council convened a Green
Codes Task Force to strengthen energy and building codes and address the impact of
climate change. Other initiatives include The Greener, Greater Building Plan targeting
energy efficiency in large existing buildings and Local Law 86 (2005), requiring new
projects to be built in accordance with the standards of the Leadership in Energy and
Environmental Design (LEED) green building rating systems. The New York City Panel
on Climate Change (NPCC) and the Climate Change Adaptation Task Force were utilized
by the City in order to develop infrastructure against adverse environmental effects from
greenhouse gas emission.
Analysis of GHG emissions and effects on the environment invariably involve
observation of the sources of greenhouse gas emission: operations emission (direct,
indirect, and indirect emissions from solid waste generation), mobile source emissions
(direct and indirect), and construction emissions (construction-generated and emissions
resulting from the manufacture or transport of construction materials).
5) The CEQR process (environmental assessment & EAS form, Notice of Determination,
public input, DEIS, FEIS, Statement of Findings)
The CEQR process involves:

Lead agency:
-undertakes, funds, or approves a discretionary action
-principally responsible for the environmental review
Involved agency:
-can approve, fund, or undertake an action
Interested agency:
-lacks the jurisdiction to approve, fund, or undertake an action,
-requests or is requested to participate in the environmental review because of
special concerns or expertise

Environmental Assessment:

An environmental assessment statement is a form used to describe the proposed

action and its location
-EAS short form
-EAS long form
-Jamaica Bay Watershed Protection Plan form
A proposed projects Environmental Assessment Statement (see e.g. EAS for NYC
water tunnel) is the 1st level of analysis of the environmental review impact areas
to determine potential effects on the environment.
Used by a lead agency to guide its Determination of Significance (neg dec, pos
dec or conditioned neg dec just like SEQRA)

Determination of Significance:

Lead agency decides if there will or will not be an effect on the environment
-Negative declaration if lead agency determines that there will not be a significant
impact on the environment.
-A Notice of Determination (Positive declaration) is prepared when there is a
potential significant impact on the environment
- A positive declaration leads to the preparation of a Draft Environmental Impact
Statement
-For a private applicant, a conditional negative declaration is prepared when the
applicant agrees to mitigate impacts as part of the project (similar to SEQRA)
-For some large projects, the lead agency may issue a positive declaration without
completing an EAS

The CEQR EIS:

Provides a complete analysis of all appropriate impact areas (for all relevant
chapters from the CEQR Technical Manual)
Provides a means for agencies, project sponsors, and the public to consider an
action's significant adverse environmental impacts, alternatives, and mitigations.
Facilitates the weighing of social, economic, and environmental factors early in
the planning and decision-making process

Statement of Findings:

A written statement prepared by each involved agency after a Final EIS has been
filed
-considers the relevant environmental impacts presented in an EIS
-weighs and balances the impacts with social, economic, and other essential
considerations
-provides a rationale for the agency's decision
-certifies CEQR requirements have been met

CEQR and Public Input:

Following the issuance of a notice of determination (positive declaration), the lead

agency shall coordinate the scoping process
The process shall ensure that all interested and involved agencies, the applicant,
the NYC Office of Environmental Coordination (OEC), community and borough
boards, borough presidents and the public are able to participate.
The scoping meeting shall include an opportunity for the public to observe
discussion among interested and involved agencies, agencies entitled to send
representatives, the applicant and the OEC. Reasonable time shall be provided for
the public to comment with respect to the identification of issues to be addressed
in the draft environmental impact statement. The OEC shall assist the lead agency
in ensuring that the public scoping meeting is conducted in an effective manner

6) CEQR challenge analysis (exactly the same as NEPA/SEQRA i.e. was a hard look
taken? Were there any arbitrary/capricious actions?)

Essentially the same as NEPA & SEQRA

Was a hard look taken?
Did the lead agency thoroughly analyze the identified relevant areas of
environmental concern to determine if the action may have a significant adverse
impact on the environment; and set forth its determination of significance in a
written form containing a reasoned elaboration and providing reference to any
supporting documentation?

7) What is ULURP and who is involved in ULURP review (DCP, relevant Community
Boards, Borough President, City Planning, City Council, Mayor's office & Mayor's veto
power) time periods for review by each

Uniform Land Use Review Procedure (ULURP)

Response to: increasing involvement of the city's Community Boards (city
divided into 59 community districts, each represented by a Community Board) in
the development of the city and a substantial increase in community participation
in many aspects of government.

ULURP Actions (property related):

Changes to the City Map

Mapping of subdivisions or platting of land into streets, avenues or Public Places
(rarely used)
Designation or change of zoning districts
Special Permits within the Zoning Resolution requiring approval of the City
Planning Commission
Site selection for capital projects
Revocable consents (e.g. bridges over streets, sidewalk cafes) requests for
proposals and other solicitations or franchises (e.g. private bus stop shelter), and
major concessions (e.g. >2,500 seat stadium)
Improvements in real property the costs of which are payable other than by the
City (rarely used)
Housing and urban renewal plans and project pursuant to city, state and federal
laws
Sanitary or waterfront landfills
Disposition of NYC owned property
Acquisition of real property by NYC

The ULURP Process:

Filing of Application (several zip files)

Certification by Dept. of City Planning (DCP)

Certified apps sent within 9 days to affected Community Board, Borough
President & City Council)
Community Board Review (60 days)
Borough President Review (30 days)
City Planning Commission Review (60 days)
City Council Review (10 days) mandatory for zoning map changes; zoning text
changes; housing and urban renewal plans; disposition of residential buildings;
disapprovals by CB and BP
Mayoral Review - may veto a council action within 5 days of the vote; Council,
by a 2/3 majority, can override a Mayor veto of its decision within 10 days of the
veto.

ULURP Fees:

Will add costs to development of project

Special permits (total amount of floor area)
-E.g. 70,000 to 99,999 square feet = $6,125
Zoning map amendments (area of all zoning lots)
-E.g. over 500,00 square feet = $30,620
Other applications
-E.g. other change in The City Street Map = $5,445
Franchises and revocable consents
-E.g. Sidewalk cafes: enclosed - $55 per seat/minimum of $1,360

Wetlands
1) How to define a wetland
Wetlands are areas where land and water meet
Wetlands are transitional areas between aquatic and upland plant and animal
communities
Wetlands also occur where groundwater is near or at the surface, saturating the
soil
2) Characteristics of a wetland (soil, vegetation, hydrology)
Wetlands are areas characterized by:

growth of wetland vegetation (bulrush, cattails, rushes, sedges, willows,

pickleweed, andiodine bush)
where the soil is saturated during a portion of the growing season or the surface is
flooded during some part of most years.
Wetlands generally include swamps, marshes, bogs, and similar areas. [U.S. Army
Corps of Engineers - see also Recognizing Wetlands ; Wetlands Delineation
Manual;
Manual; USFWS/USACE List of Wetlands Vascular Plant Species]

3) Wetlands delineation (what is delineation?)

Engineers note: The Corps of Engineers Wetlands Delineation Manual is the

technical guidelines bible for wetlands

A determination that a wetland exists and a depiction of the extent and boundaries
of the wetlands
Some state/local environmental agencies will undertake a wetlands delineation
Diagnostic Environmental Characteristics 3 Key Indicators (a minimum of one
indicator is required to delineate a wetland):
Vegetation: macrophytes that are typically adapted to areas having hydrologic and soil
conditions
Soil: classified as hydric, or it possesses characteristics that are associated with reducing
soil (e.g. ferric to ferrous) conditions
Hydrology: area is inundated either permanently or periodically at mean water depths
<6.6 ft, or the soil is saturated to the surface at some time during the growing season of
the prevalent vegetation
4) Wetland mapping

The Freshwater Wetlands Act (Article 24 of the ECL) requires DEC to map all
those freshwater wetlands that are subject to jurisdiction of the law.
The maps must show "the approximate location of the actual wetland boundary.
DEC will refine that approximate boundary by doing a field delineation for
landowners when they need more precise information, such as when they are
planning to conduct work near a wetlands area.
Original wetland maps were filed in most counties between 1984 and 1996 and
some have since been corrected or amended
Digital wetlands boundary data are available through CUGIR
Wetlands Mapper from USFWS
NYSDEC add State-Regulated Freshwater Wetlands layer to the GIS
Environmental Resource Mapper
One of the 1st steps: Check the wetlands maps (then look for amendments)

5) Freshwater vs marine wetlands

6) Regulation thresholds (e.g. 12.4 acres for NY State)
7) Joint regulation e.g. NYSDEC & US ACE
8) Types of wetlands (generally)
9) Buffers (100 ft vs other local restrictions e.g 150 ft. in Lewisboro case study)
10) Impact of more restrictive buffers (e.g. denial of development)
11) Wetlands mitigation (buffers, constructed wetlands, swales, transfer of development
rights for properties with wetlands, etc.)
12) Should isolated wetlands be regulated? Are they navigable waters / waters of
the U.S. ? Supreme Court split is a nexus (link) between an isolated wetland and a
clearly navigable waterway required? Rapanos decision was 4:4:1 now, we need to
look for a nexus between the alleged wetland and a navigable water; guidance is still
not clear which led to EPA proposing a rule to define waters of the United States

Zoning & Land Use

1) What is zoning?

Zoning is the practice of designating permitted uses of land based on delineated

zones that are mapped.
Zoning separates one set of land uses from another.
The separation may be based on:
Use - regulating the uses to which land may be put (commercial, residential, industrial,
mixed)
Other health/safety; building height; lot coverage, and similar characteristics,
Zoning is the basic tool of urban planning.
2) Authorized by a states police power

Generally, the states police power under their state constitution may be used to
promote the health, morals, safety, or general welfare of its populace
Zoning upheld by Supreme Court as a valid exercise of police power [Village of
Euclid v Ambler Realty Cp. 272 U.S. 365]- hence: Euclidean Zoning
But land use regulation must be within the scope of the states police powers
(balance public benefit vs. private loss)

3) Why do we have zoning?

Establish basic parameters for use & development of land

Serve as a means for preservation
Promote desired land uses

4) Simple (older communities e.g. Seneca Falls, NY) vs more complex modern
communities e.g. Carlsbad, CA)
5) The tension between: legitimate exercises of a states police power (protect health,
safety, welfare) versus unconstitutional takings

Generally, the states police power under their state constitution may be used to
promote the health, morals, safety, or general welfare of its populace
Zoning upheld by Supreme Court as a valid exercise of police power [Village of
Euclid v Ambler Realty Cp. 272 U.S. 365]- hence: Euclidean Zoning
But land use regulation must be within the scope of the states police powers
(balance public benefit vs. private loss)
5th Amendment of U.S. Constitution
Applies to states via 14th Amendment
nor shall private property be taken for public use, without just compensation [the
Takings Clause]
Most state constitutions include the same or similar provisions (Art. I Sect. 7 in NY)
A zoning/land use regulation may constitute a taking without just compensation

6) Can a zoning regulation go too far and become a taking?

A zoning/land use regulation may constitute a taking without just compensation

7) Reasonable Euclidean zoning vs. unreasonable 5th Amendment takings

Euclidean zoning requires just compensation

5th Amendment takings clause
nor shall private property be taken for public use, without just compensation
The Supreme Court applied the Takings Clause of the 5th Amendment to the States
through the 14th Amendment Due Process Clause in Chicago Burlington and Quincy
R.R. v. City of Chicago,
Chicago, 166 U.S. 226 (1897).

Its a taking if:

the regulation or restriction subjects the property to a permanent physical occupation

it requires or allows public use of private property (even some easements)
it results in no economically viable use of the property
The regulation or restriction does not advance a legitimate state interest (nexus test
i.e. no nexus or link = a taking) i.e. is it Reasonable?

8) Some of the tests for whether zoning is a taking (e.g. nexus, rough proportionality,
denial of development)

No Nexus: no reasonable link found

No Rough Proportionality: : conditions on development must be roughly
proportional to anticipated impacts (generally, cant require developer to undertake
mitigation greater than the impact of their projects)
Denial of Development: when the nexus & proportionality goes way too far
Exaction: a govt. requirement that a developer provide specified land,
improvements, payments, or other public benefits to offset impacts of a project that
does not meet nexus or rough proportionality test

9) Can a private taking (condemnation via eminent domain power with the property
then developed by a private party) be a Constitutional public taking (e.g. Kelo case;
Atlantic Yards, Columbia U.)

Environmental protection via land use restrictions (E.g. EPODs and other zoning
add-ins)
1) overlay zones (e.g. EPODs environmental protection districts overlaid over
Euclidean zoning)

Leave existing zoning in place and overlay new requirements:

requirements:

Mapped areas, superimposed on existing Euclidean zoning districts, in which

additional or different regulations are imposed
Usually addresses environmental issues (e.g. water supply protection) without
changing the underlying density or use requirements of the Euclidean zone
Example: NYC Special Natural Area District to preserve vegetation and natural
terrain in Staten Island & The Bronx (NYC Zoning Resolution 105-00); NJ

Pinelands Protection Act to preserve 1 million acres of pine forests, aquifers, &
cranberry bogs
An Environmental Protection Overlay District (EPOD
(EPOD)) is an example of overlay
zoning

2) transfer of development rights (TDR)

A value is placed on the owners right to develop their property

Some or all of an owners development rights are transferred to a receiving site

where development is increased
Owner loses some development rights but a benefit is realized elsewhere
Some states even set up TDR banks or purchase TDRs themselves

3) cluster zoning
Re-distribute the development of a zoned parcel without increasing its total
developed density

Zoning typically uses uniform lot sizes to control residential development (e.g. R-10
= Residential @ 10,000 sq ft or ~1/4 acre 100x100 lots; R-40 = ~ 1 acre zoning)
Under cluster zoning, residential units are clustered in a smaller area and open
spaces maintained on un-subdivided portions of the parcel
Overall density must generally remain the same (e.g. 10 acres of R-10 could support
40 units; cluster no more than 40 on x acres and keep 10-x as open space)
Could also potentially help developer with steep slope, rocky outcropping or other
site issues and reduce infrastructure costs (roads, utilities, etc) while preserving
natural resources

4) planned unit developments (PUDs)

Used to plan a community on a case by case basis

Type, density and placement of land uses and buildings, instead of being detailed
and confined to specified districts by local legislation
is determined by contract, or "deal," for each development between the developer
and the municipal administrative authority
Focus is on regulation of density and permitted mixture of uses within the same
area, including various kinds of living accommodations with or without
commercial and industrial enterprises.
The idea may be basically thought of as the creation of "new towns" in virgin
territory, full-blown or in miniature, (as in Mount Laurel, N.J.) or residential
developments of various sizes having some variety of housing and perhaps some
retail establishments to serve the inhabitants.

5) open space dedication

Similar to requiring streets, sidewalks, or sewer lines, or payments towards

schools, treatment plants, or low income units, this requires dedication of some
portion of the development to open space or the payment of a fee for the
municipality to acquire open space (fees more difficult to uphold unless they go to
a dedicated fund with a plan for its expenditure)

6) conservation easements

Through voluntary agreement rather than eminent domain condemnation

Types:
Fee simple (buy the property outright)
Fee subject to life estate (owner remains until death)
Sale & leaseback (lease the purchased land back to original owner who maintains it)
Easement
Conservation easement
Owner retains ownership subject to restrictions that protect the publics interests (e.g.
NYS Watershed Conservation Easements)
Perpetual enforceability
Tax incentives
Gifts of partial interests in land may qualify as a charitable contribution
7) land trusts
Private land preservation generally by not-for-profit organizations

Sometimes the organization will work with a developer to secure project approval
Potential liability issues for the land trust organization (personal injury; hazardous
waste, etc.)

8) environmental accords (e.g. MBIA case study)

Agreements reached with the owner and/or developer that addresses any land
development issues that were raised
Can transform opposition by environmental groups or NIMBYs into
environmental advocates who will support the approvals needed for the project.
Removes the threat of a litigation challenge to the proposal ultimately saving time
and money
MBIA proposed expanding its corporate headquarters in the town of North Castle,
in the immediate vicinity of the Kensico Reservoir
Environmental groups feared that construction and new paved surfaces would
destroy critical watershed greenery and funnel additional pollution and
stormwater runoff into the nearby reservoir.
An accord was reached that included significant modifications to MBIAs
originally proposed project modifications that both sides agree are designed to
raise commercial development standards for building in environmentally
sensitive watershed areas.
MBIA proposed expanding its corporate headquarters in the town of North Castle,
in the immediate vicinity of the Kensico Reservoir
Environmental groups feared that construction and new paved surfaces would
destroy critical watershed greenery and funnel additional pollution and
stormwater runoff into the nearby reservoir.
An accord was reached that included significant modifications to MBIAs
originally proposed project modifications that both sides agree are designed to
raise commercial development standards for building in environmentally
sensitive watershed areas.

9) Can zoning and EPODs be used to discourage affordable housing (see below)
10) Restrictive covenants what are they? Can they be imposed on a landowner?
Steep Slopes EPODs/Zoning
1) Why care about steep slope development?

Building on steep slopes disturbs fragile land

May result in increased erosion of the hillsides
Potential increased sediment loading into waterways (e.g. TMDL requirement for
non-point source runoff arose, in part, from concerns over-logging and impact of
TSS on steelhead trout)

2) How addressed (ordinances, overlay zones, design standards)

Communities can:
enact ordinances (e.g. Chapter 259 of Town of Cortlandt Zoning Law)
adopt overlay zones (E.g. an EPOD)
create design standards
to address land use on steep slopes.

Such controls generally prohibit, or carefully monitor and control, construction on

steep slopes (typically defined as anywhere between ~15 - 25%)

3) How steep is steep? (e.g. usually >15%)

Steep Slope: Any geographical area proposed for disturbance, whether on a single
lot or not, having a topographical gradient of 15 % or greater (ratio of vertical
distance to horizontal distance), with a minimum horizontal dimension of ten feet,
and a minimum area as defined below, and whether man- made or natural, and
whether created by a retaining structure or not. Steep slopes are further
categorized as:
Moderately steep slope: A slope equal to or greater than 15 % but less than 25 %
and covering a minimum horizontal area of 3/10 of an acre or 13,068 square feet.
Extremely steep slope: A slope greater than 25 % and covering a minimum
horizontal area of 2/10 of an acre or 8,712 square feet.

4) Types of restrictions

It shall be unlawful to create any disturbance or to remove any tree with a

diameter greater than four (4) inches, when measured from one and one half (1)
feet from ground level, on any steep slope as defined by this section, other than an
exempt activity as defined herein, without a specific written permit as required by
this section
Exempt activities: any customary landscaping is allowed without the need for
obtaining a permit

Zoning & Affordable Housing

Restrictive Planned Use Developments (PUDs) that result in housing that is not
affordable because of expensive-to-build conditions imposed
Zoning can be improperly used to try to bar access to housing for certain classes
of individuals

1) Builder's remedy (Toll Brothers case) what exactly is the builders remedy?
Stormwater Runoff from Construction Sites
1) Why are we concerned about this?

2) Clean Water Act ==> NPDES (Feds)===> SPDES (state: NYSDEC) ===> requires
construction permit for site runoff

Pursuant to Section 402 of the Clean Water Act (CWA), stormwater discharges
to waters of the United States1 are unlawful unless they are authorized by a
NPDES (National Pollutant Discharge Elimination System) permit or by a state
permit program.
New Yorks SPDES (State Pollutant Discharge Elimination System) is a NPDESapproved program with permits issued in accordance with the Environmental
Conservation Law (ECL).
A SPDES General Permit for Stormwater Discharges is required for discharges
from certain construction activities
Operators of construction activities underway after March 10, 2003 involving
one acre or more of land disturbance must obtain SPDES permit coverage
through either an individual permit or the new General Construction Permit (GP02-01 - a Phase II permit)
As of April, 2008 ,owners
or operators of construction activities located in the
,o
NYC Watershed - East of the Hudson that disturb between five thousand (5000)
square feet and one (1) acre of land are required to gain coverage under the new
general permit prior to commencing construction activity.

3) Review the chart on the permit process (NOI, implications of being in a TMDL or
other special area, etc.) if there is a question, chart will be supplied

4) 5 day permit vs 60 day permit

If an applicant certifies that the SWPPP has been developed in conformance with
DEC standards, the applied-for activity may obtain coverage under this general
permit in five (5) business days after DEC receives NOI provided the activity is
eligible for coverage and DEC has not informed the applicant otherwise.
If deviations from DEC standards are required and identified in SWPPP and
certified by a licensed/certified professional, applicants must allow 60 business
days after the receipt by DEC of NOI and certification before gaining coverage
under this general permit and before initiating any construction activity.
5) Erosion and Sediment Control (ESC) Plan needed at a minimum

DEC technical standards for erosion and sediment control are contained in the
Blue Book document, New York Standards and Specifications for Erosion and
Sediment Control ( published by the Empire State Chapter of the Soil and Water
Conservation Society.)
also downloadable by chapter here
Blue Book Lite @ DEC site condensed version
If compliance with these standards are certified, a 5 day permit will issue

6) Stormwater Pollution Prevention Plan (SWPPP)

A StormWater Pollution Prevention Plan (SWPPP) shall be developed by the

operator for construction activities at each site to be covered by the permit
The SWPPP shall:

identify potential sources of pollution which may reasonably be expected to affect the
quality of stormwater discharges
describe and ensure the implementation of practices which will be used to reduce the
pollutants in stormwater discharges
assure compliance with the terms and conditions of the permit
Include erosion and sediment controls (E&SC)
For TMDL areas, the SWPPP must include a certification by a licensed/certified
professional
Owner/ operator also responsible for complying with stormwater management
requirements of any local government having jurisdiction over the project
7) review sample Westlake H.S. SWPPP
8) know some types of mitigation (swales, detention basins, etc) see Blue Book Lite
9) Review the blue book
Environmental Site Assessments
1) When required?

2) For what purpose? i.e. why do we do ESAs? - due diligence and safe harbors (e.g.
innocent landowner defense under Superfiund); lenders will require

Superfund imposes liability for removal and remediation costs and this liability is
strict, joint & several, & retroactive.
Historically, under Superfund the owner or operator of a contaminated property
could be held responsible for the property's cleanup, based solely on his/her
current ownership of the property.

Who can defend against Superfund liability?

Bona Fide Prospective Purchasers (BFPPs)
BFPPs must perform all appropriate inquiry prior to purchase and may buy knowing, or
having reason to know, of contamination on the property
Contiguous Property Owners (CPOs)
CPOs are owners of property that is not the source of the contamination.
CPOs must perform all appropriate inquiry prior to purchase and buy without knowing,
or having reason to know, of contamination on the property.
Innocent Landowners (ILOs)
ILOs must perform all appropriate inquiry prior to purchase and must buy without
knowing, or having reason to know, of contamination on the property.
Whats the common thread?
must perform All Appropriate Inquiry !
3) What is all appropriate inquiry

EPA issued a final rule for "All Appropriate Inquiry" that became become
effective on November 1, 2006.
The new rule affects environmental due diligence conducted by prospective
purchasers of commercial real estate, as well as other entities who wish to avail
themselves of "Superfund" (CERCLA) liability protections.

4) Scope of a Phase 1 i.e. records review + site inspection + interviews + report

A Phase I environmental site assessment requires that an appropriately qualified

environmental professional review to do the following:
review existing records concerning the site
research the operational history of the site
conduct a site visit and interviews to determine whether the potential exists for
contamination at the site
Phase I site assessments are used to identify existing or past signs of potential
contamination at a property. Contamination can consist of hazardous substances,
hazardous waste and petroleum products.
i.e. Phase I = Records + Visit + Interviews
5) ASTM 1527 general requirements just be generally familiar with it

ASTM Standard 1527 defines good commercial and customary practice in the
U.S. for conducting an environmental site assessment2 of a parcel of commercial
real estate. Pursuant to ASTM 1527, a data failure is defined as a failure to
achieve the historical research objectives even after reviewing the standard
historical sources that are reasonably ascertainable and likely to be useful. A data
gap is defined as a lack of or inability to obtain information required by this
practice despite good faith efforts by the environmental professional to gather
such information.

Even assuming no negligence on the part of Impact Environmental, clearly there

was a data failure and a data gap since 38 drywells were not discovered either
during the site visit or during a review of public documents.

However, ASTM 1527 recognizes that no environmental site assessment can

wholly eliminate uncertainty regarding the potential for recognized environmental
conditions in connection with a property and that performance of this practice is
intended to reduce, but not eliminate, uncertainty regarding the potential for
recognized environmental conditions in connection with a property. It also
recognizes reasonable limits of time and cost.

ASTM 1527 also notes that all appropriate inquiry does not mean an exhaustive
assessment of a clean property. There is a point at which the cost of information
obtained or the time required to gather it outweighs the usefulness of the
information and, in fact, may be a material detriment to the orderly completion of
transactions. One of the purposes of ASTM 1527 is to identify a balance between
the competing goals of limiting
The costs and time demands inherent in performing an environmental site
assessment and the reduction of uncertainty about unknown conditions resulting
from additional information.

6) What requirements does a Phase 2 (testing) and/or Phase 3 (extent of contamination)

study add?
Phase 2

A Phase II environmental site assessment is a detailed evaluation of

environmental conditions at a property.
This evaluation relies on the collection and analysis of soil, sediment, soil vapor
and/or groundwater samples, and other measurements taken at the site to confirm
and quantify the presence of environmental contamination at the property.
The Phase II site assessment is designed to evaluate the degree of contamination
and health or environmental risk posed by exposure to such contamination.

Phase 3
Delineation: Vertical and horizontal limits of the extent of contamination.
Evaluate risks to human health and environment, and propose remedial actions.
Remediation: Conduct remediation using an appropriate technology
If contamination is confirmed and the levels of contaminants are known, an
assessment of risks to human health and the environment may be conducted to
determine how people and/or the environment could be affected.
Once a risk assessment has been conducted or a comparison is made to state or
federal cleanup standards, a decision can be made as to whether or not the
property poses an unacceptable environmental or health risk.
If unacceptable risk is determined to exist at the site, a plan can be developed to
clean up the property and reduce risks to humans and the environment.
It may not provide sufficient information to estimate the exact quantity of wastes
to be addressed or the costs of cleanup. Additional work may be needed.
7) Liability for environmental professionals

Environmental Professional means:

(1) a person who possesses sufficient specific education, training, and experience
necessary to exercise professional judgment to develop opinions and conclusions
regarding conditions indicative of releases or threatened releases on, at, in, or to a
property, sufficient to meet the objectives and performance factors
(2) Such a person must:
(i) Hold a current Professional Engineer's or Professional Geologist's license or
registration from a state, tribe, or U.S. territory and have the equivalent of three (3) years
of full-time relevant experience; or
(ii) Be licensed or certified by the federal government, a state, tribe, or U.S. territory (or
the Commonwealth of Puerto Rico) to perform environmental inquiries and have the
equivalent of three (3) years of full-time relevant experience; or
(iii) Have a Baccalaureate or higher degree from an accredited institution of higher
education in a discipline of engineering or science and the equivalent of five (5) years of
full-time relevant experience; or
(iv) Have the equivalent of ten (10) years of full-time relevant experience.

Sustainability/ Green Buildings (you do not need to know a lot of details for this topic;
some general awareness of developments is OK)
1) General awareness of some benefits (water conservation, capture stormwater &
decrease runoff, energy savings, recyle/treat wastewater for flushing, etc.) potential water
quality benefits, aesthetics. Etc.
2) General knowledge of green roofs (e.g. layering, barriers, plantings, etc)
3) Trend towards regulation and more formalization as opposed to current generally
voluntary participation; benefits of green building certification for marketing, etc.);
government requirements (Federal, state)

4) General awareness of existence of certification processes (e.g. LEEDS)

5) Pros/cons of greening; greenwashing