environmental law for land surveyors · 2020-01-23 · the substance of environmental law emanates...

ENVIRONMENTAL LAW FOR

LAND SURVEYORS

Theodore W. Firetog, Esq.Law Offices of Theodore W. Firetog111 Thomas Powell Blvd.Farmingdale, New York 11735

(516) [email protected]

Purpose of this Presentation

1. Understand how Professional Land Surveyors can be

Important to Environmental Site Assessments (ESA),

including Site Remedial Programs.

2. Identify the part that Professional Land Surveyors play in Complying with the SEQRA Process.

3. Recognize the Professional Land Surveyor’s role with

Respect to Wetland Delineation in the Context of

Existing Environmental Law.

Introduction to Environmental Law

• Understand what is meant by, and what

constitutes, Environmental Law.

• Review the Basics of our Legal System

with Respect to Environmental Law.

Definitions

• Environmental Law is an organized way of using all the laws and legal resources in our legal system to minimize, prevent, punish, or remedy the consequences of actions which damage or threaten the environment, public health, and safety.

• Legal System refers to the procedures and processes for enacting and enforcing laws and other legal resources relating to a person's rights and responsibilities.

Legal System (Federal)

Legislative Branch – Enacts Law (Environmental Laws). Consists of a

bicameral Congress: the Senate and the House of Representatives.

Executive Branch – Enforces the Law. Headed by the President and

contains the Federal Agencies that administer the Statutes.

U.S. Environmental Protection Agency/ U.S. Army Corps of

Engineers (Nation’s Environmental Engineer)

Judicial Branch – Interprets the Law. Consists of the U.S. Supreme

Court and lower Federal Courts (e.g., the Court of Appeals and

District Courts). Cases involving Federal environmental Laws are

first initiated in U.S. District Courts.

Legal System (New York)

Legislative Branch – Enacts Statutes (e.g., Environmental Laws). Consists of a bicameral Legislature: the Senate and the Assembly.

Executive Branch – Enforces the Statutes. Headed by the Governor and the Departments that administer the Law.

N.Y.S. Department of Environmental Conservation (DEC)N.Y.S. Department of Health (DOH)

Judicial Branch – Interprets the Statutes. Unified Court System: Consists of the Court of Appeals (State’s highest Court), Appellate Courts, Supreme Courts (civil trial courts), County Courts (felony criminal cases), City courts and Justice courts (town and villages). Cases involving State Environmental Laws are first initiated in N.Y. Supreme Courts.

The Substance of Environmental Law

Emanates from the following Sources:

1. The Constitution.

2. Laws, Statutes, and local Codes and Ordinances.

3. Regulations promulgated by Federal, State, and local

agencies of the Executive Branch.

4. Federal, State, and local court decisions interpreting

Laws, Statutes, Regulations, Codes, and Ordinances.

5. The Common Law: Nuisance, Trespass, Negligence,

and Strict Liability [Riparian Rights].

6. Treaties.

Finding Environmental Laws

Laws and Statutes:

Federal: United States Code (USC) is the official compilation and codification of Federal Statutes.

Clean Air Act: 42 USC §7401 et seq.

New York: Consolidated Laws of New York Environmental Conservation Laws (ECL) are found in Chapter 43-B of the Consolidated Laws of New York

The State Environmental Quality Review Act (SEQRA) can be found in Article 8 of the ECL

Regulations:

Federal: Code of Federal Regulations (CFR)

CAA: 40 CFR Part 60

New York: New York Codes, Rules, and Regulations (NYCRR)

SEQRA: 6 NCRR Part 621

• National Environmental Policy Act of 1969 (NEPA): 42 USC § 4231 et seq.

• Clean Air Act (CAA): 42 USC § 7401 et seq.

• Federal Water Pollution Control Act (Clean Water Act) (FWPCA or CWA): 33 USC § 1251 et seq.

• Toxic Substances Control Act (TSCA): 15 USC § 2601 et seq.

• Resource Conservation and Recovery Act (RCRA): 42 USC § 6901 et seq.

• Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCA or Superfund): 42 USC § 9601 et seq.

Major Federal Environmental Laws

Environmental Site Assessments or

Audits

• An Environmental Site Assessment (ESA)

or Audit is an examination of real property

to determine the environmental condition

of the site.

• It is different from an Environmental

Compliance Audit.

Phase I ESA

• Phase I ESA: refers to that part of an ESA used to identify, to the extent feasible, recognized environmental conditions at a site.

• Recognized Environmental Conditions (RECs) – The presence or likely presence of any hazardous substances or petroleum products in, on, or at a property: (1) due to a release to the environmental; (2) under conditions indicative of a release to the environment; or, (3) under conditions that pose a material threat of a future release to the environment.

Components of a Phase I ESA

ASTM E1527-13

1. Records Review.

2. Site Reconnaissance.

3. Interviews:

a. Interviews with present and past owners,

operators, and occupants of the Property;

and,

b. Interviews with government officials.

4. Evaluation and Report.

Non-Scope Items

• Ecological resources

• Land use restrictions – zoning restrictions

• Utilities

• Easements

• Unique topographical features

• Wetlands

• SEQRA information

Useful Surveys

• Monitoring Well Surveys

• Topographic Surveys

• Boundary Surveys

• Title Surveys

• ALTA Surveys

• Elevation Certificates

• Construction Stake Out

• SEQRA information

• Wetland Mapping

• Surveys for Environmental Easements

Environmental Easement

• Pursuant to Article 71, Title 36 of the ECL, certain Sites remediated under the State's Remedial Programs may be subject to an Environmental Easement (EE).

• These Remedial Programs include the Brownfield Cleanup Program (BCP), Environmental Restoration Program (ERP), Voluntary Cleanup Program (VCP), and Inactive Hazardous Waste Disposal Site Program (State Superfund).

• Environmental Easements can be used to restrict the use of a property to specified categories (e.g., commercial or industrial) or to require ongoing institutional and/or engineering controls (e.g., Soil Vapor Extraction System) that are included as part of the final remedy for the Site.

• Environmental Easements are granted by title owners of the Site to the DEC, run with the land, and are enforceable in perpetuity

New York State Environmental

Quality Review Act (SEQRA)

• Statute - Contained in Article 8 of the Environmental Conservation Law (ECL) - (Chapter 43-B of the Consolidated Laws of New York).

• Regulations – Contained in Part 617 of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR Part 617).

• Requires State and local governmental “Agencies” to consider “Environmental Factors” in its discretionary decision making process at the earliest possible time.

ENVIRONMENTAL FACTORS

Resources or Characteristics that could be

affected by an action, including:• Land, air, water, and minerals

• Flora and fauna

• Noise

• Features of historic, archeological, or aesthetic

significance

• Population patterns

• Community character

Agencies Subject to SEQRA

• State Agencies

• County Legislatures

• Town or Village Boards

• City Councils

• Planning Boards

• Zoning Boards of Appeal

• Industrial Development Agencies

• School Boards

Any State or Local Governmental unit that has jurisdiction by law to fund,

approve or directly undertake an action.

The SEQRA Process

1. Agency Proposes Action or Receives Application

2. Action is Classified (Type I, Type II or Unlisted Action

3. Lead Agency Established

4. Significance of Action Determined

5. Environmental Impact Statement (EIS), if Needed

6. Findings and Agency Decision

Types of Proposed Agency Actions

• New public or municipal facilities (e.g., schools, offices, roads, parks).

• Formal policies.

• Local Laws or Ordinances.

• Site Selection.

• Bond resolutions.

• Preliminary Studies are exempted.

• Non-Discretionary Actions are exempted.

Commencing the SEQRA Process

• The Agency that proposes a action, or the first Agency to receive an application, initiates the process.

• Applicants usually include a SEQRA Environmental Assessment Form (EAF) with the application materials.

• The initiating Agency must identify other State or local agencies that may be involved in the proposed action:

– Highway access

– Multi-jurisdictional permits

– local land use approvals

• The initiating Agency must classify the proposed action (Type I, Type II, or Unlisted Action) based on all components, phases, or aspects of the proposed action.

The SEQRA Process


2. Action is Classified (Type I, Type II, or Unlisted Action)





Type II SEQRA Actions(6 NYCRR § 617.5)

• These actions have been determined categorically not to require preparation of EIS’s.

• Examples include: – Most maintenance or repair (including upgrading

buildings to meet building and fire codes)

– 1,2, or 3-family homes on approved lots

– New non-residential uses under 4,000 square feet that requires no zoning change or use variance

– Purchase or sale of supplies or equipment

• List is provided in Part 617 of the Regulations to help determine if an action is a Type II.

Type I SEQRA Actions(6 NYCRR § 617.4)

• More likely or presumed to have a significant adverse impact on the environment, so more likely to need an EIS.– Not an automatic EIS requirement

• Examples– Large residential facilities in the context of existing

community size

– Projects in proximity to historic sites or parklands

– Actions that involve the physical alteration of 10 acres or more

– Most zoning changes and certain changes of use

Unlisted Actions

• These Actions fall been the two “listed” categories

• Examples:

– New 20-unit apartment buildings

– New non-residential use of 10 acres or less

– Sale, purchase, lease or other transfer of fewer than 100 acres of land by a government entity

Why Classification Matters

• Type II Actions– No further review is required

• Type I Actions– Must “coordinate” with other “involved agencies”

– Must use a Full Environmental Assessment Form (EAF)

• Unlisted Actions– Initiating agency chooses whether to coordinate

– Agency may allow Short EAF or require a Full EAF

Environmental Assessment Form

(EAF)

SEQRA review (determination of Significance)

starts with the EAF

• Type II Actions: No further review required

• Type I Actions: Submit Part 1 of the Full EAF

• Unlisted Actions: Submit Part 1 of the Short EAF (although

a Full EAF may be required)

Environmental Assessment Forms

SEAF and FEAF

• Two EAF Forms: Short Form (SEAF) and a Full (Long) Form (FEAF)

• There are Three Parts to the SEAF or FEAF: (Part 1, Part 2, and Part 3)– Part 1: - The Project Sponsor/Applicant completes

- The Site and Project Descriptions

– Part 2 - The Lead Agency completes - Identifies what Affected – what resources will be

impacted (by category) by the proposed action - How Big an Impact - Lead agency estimates size and

extent of impacts per category (Small or Moderate to Large)

– Part 3 - The Lead Agency completes, if necessary - Weighing the Impacts Identified in Part 2 - Only completed if one or more Moderate to Large

impacts were identified in Part 2

DEC Environmental Mapperhttps://gisservices.dec.ny.gov/gis/erm/

Feedback | Help 1:9,244,649

Select County: [SELECT] Select Town:

Navigate To Area (Step 1)

Define Project Site (Step 2)

Or

Area:

Create Report (Step 3)

The SEQRA Process


2. Action is Classified (Type I, Type II or Unlisted Action





Lead Agency Established

The Agency that proposes an action, or that first receives an application, must:

• Indentify all the potentially involved agencies.

• Send the EAF and all supporting materials to those agencies for coordinated review.

• Notify each involved agency that a SEQRA Lead Agency must be established within 30 days of notification.

The SEQRA Process







Significance of Action Determined

• Determines the magnitude of the effect of the proposed action on Environmental Factors

• Identifies impacts and/or alternatives that avoid or reduce such impacts

• Issues a Positive Declaration – Possible significant impact that requires and EIS

– Adverse changes to the environment

– Reduction of wildlife habitat

– Hazard to human heath

– Substantial change in the land use

• Issues a Negative Declaration – No significant impact and no further review is necessary

• Conditioned Negative Declaration – Imposes conditions– Only used for Unlisted Actions

– Full EAF must be prepared

– Must have coordinated review

The SEQRA Process







Environmental Impact Statement

After Scoping, a Draft EIS is prepared and must contain:

• Description of the action, including its need and benefits;

• Description of the environmental setting and areas to be affected;

• An analysis of all environmental impacts related to the action;

• An analysis of reasonable alternatives to the action; and,

• Identification of ways to reduce or avoid adverse environmental impacts – reasonable alternative.

The SEQRA Process







Findings and Agency Decision

• Draft EIS goes out for public comment

• Final EIS adopted by the Lead Agency

• Notice of Completion filed with the DEC

Wetlands

• NYS DEC Definition: Those areas saturated by surface or ground water sufficient to support distinctive vegetation adapted for life in saturate soil conditions (swamps, marshes, bogs, and similar areas) that are at least 12.4 acres or smaller if it has unusual local importance.

• US Army Corps of Engineers Definition: Those areas that are inundated or saturated by surface water or groundwater that are waters of the U.S. at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

Regulation of Wetlands

• Federal: – CWA 33 USC § 1251 et seq. and the regulations promulgated

(e.g., Waters of the United States – 33 CFR § 328.3)– US Corps of Engineers

– U.S. EPA

– U.S. Fish and Wildlife Service

• State: – NY Freshwater Wetlands Act (ECL § 25-0101 et seq.)

• Regulations: 6 NYCRR §§ 663.1 to 663.11

– NY Tidal Wetlands Act (ECL § 250101 et seq.)• Regulations 6 NYCRR §§ 661.1 to 661.19

– New York DEC

Wetland Delineation

• Wetland delineation usually refers to determining the precise boundaries of the wetland through field inspection.

• Wetlands Delineator – a qualified individual who has a good grasp of hydrology and can identify wetland vegetation.

• Delineator’s Job – identify wetlands characteristics and mark with flags for the surveyor to show the wetland boundary.

• Surveyor’s Role - carefully chart the wetlands boundary from the flags and use charts to determine the maximum and regular high tide, maximum and regular low tide, and mean tide and include these in the survey.

Tools for Delineation

• Federal (EPA and US Corps of Engineers):– 1987 Corps of Engineers Wetlands Delineation

Manual

• State (DEC):– DEC’s Freshwater Wetlands Delineation Manual

(http://www.dec.ny.gov/docs/wildlife_pdf/wdelman.pdf

– Existing Wetland Mapping 1974 NYS Official Tidal Wetlands Inventory

– Aerial Photos and Videos

http://www.dec.ny.gov/docs/wildlife_pdf/wdelman.pdf

environmental law for land surveyors · 2020-01-23 · the substance of environmental law emanates...

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