WRP Consistency Review Procedures
Proposed Rules: Closed to Comments
Statement of Basis and Purpose of Proposed Rule
The Federal Coastal Zone Management Act (16 U.S.C., CZMA) was enacted by Congress on October 27, 1972 to encourage coastal states to develop comprehensive programs to manage and balance competing uses of and impacts to coastal resources. New York State developed and received approval of its statewide Coastal Management Program (CMP) in 1982. Article 42 of the Executive Law, entitled Waterfront Revitalization of Coastal Areas and Inland Waterways is the main statute that implements the State CMP by establishing the:
- Boundaries of the Coastal Area within which the CMP applies;
- Statewide policies that would be enforceable on all State agencies which address significant coastal issues and manage resources along the State's coastline;
- Authorization for localities to prepare and adopt local waterfront revitalization programs which in turn, would provide more detailed implementation of the State's Program.
New York City adopted a local waterfront revitalization program (WRP), to more specifically define the New York City Coastal Zone Boundary and local coastal area management policies pursuant to which applicable local, state and federal projects or actions within the Coastal Zone must be reviewed for consistency. Section 192(e) of the City Charter (Charter) provides that the City Planning Commission (the Commission) "shall oversee implementation of laws that require environmental reviews of actions taken by the city" and that the Commission "shall establish by rule procedures for environmental reviews of proposed actions by the city where such reviews are required by law." Section 191(b)(2) of the City Charter provides that the director of the Department of City Planning (the Department) shall “provide staff assistance to the City Planning Commission in all matters under its jurisdiction.” The WRP designates the City Planning Commission as the City Coastal Commission (CCC), which is, with the Department, responsible for administering the WRP for New York City.
The Department, on behalf of the Commission, is proposing to amend Chapter 4 (City Coastal Commission Procedures) of Title 62 of the Rules of the City of New York (Rules) pursuant to its authority under Sections 191(e) and 191(b)(2) of the New York City Charter. The purposes of the proposed amendments may generally be described as follows:
(1) make the rule consistent with State procedures in terms of the local discretionary actions to which it applies;
(2) streamline the threshold for when the Department will refer state and federal actions to the CCC for review, which threshold shall also be applied to local actions that do not otherwise come before the Commission;
(3) reestablish and clarify the role of the Department and CCC in local actions subject to City Environmental Quality Review (CEQR) but not subject to Commission approval;
(4) and remove from the existing rule outdated references and other provisions regarding internal or inter-agency procedures.
Specifically, the proposed amendments will ensure that the Department or the CCC reviews all local discretionary actions located within the Coastal Zone as provided in the WRP, for their consistency with the WRP. . In addition, because under the current rule there are some local discretionary actions which require Commission approval but which are not subject to CEQR, the proposed rule clarifies that the local discretionary actions subject to WRP review only include those classified as Type I or Unlisted under the State Environmental Quality Review Act (SEQRA) and, thus, subject to CEQR, consistent with the intent of the WRP as well as State practice in terms of how it undertakes WRP consistency reviews of its actions subject to SEQRA. Also, as provided in the WRP and as reflected in the existing rule, the Department or the CCC will continue to provide an advisory analysis of state and federal actions which are subject to state or federal consistency review using the coastal policies in the WRP by the relevant state agency or the New York State Department of State (DOS) or the relevant federal agency, and will convey any related comments and findings to the state agency or DOS for the purpose of consultation, in accordance with relevant state and federal laws and regulations.
Also, there are currently four thresholds in the existing rule for federal and state actions which, if met, require review by the Commission, as CCC, and the Department reviews all others. These thresholds are proposed to be streamlined into a single threshold for federal and state actions, as well as for local actions that do not otherwise come before the Commission for approval. Actions that the Department believes present a substantial hindrance to one or more policies of the WRP must be referred to the Commission, as CCC. When a substantial hindrance has been identified, local actions may not be approved unless or until the CCC finds, or concurs with the CEQR lead agency’s finding, that the following four requirements, as set forth in the approved WRP, are met:
(1) no reasonable alternatives exist that would permit the action to be taken in a manner which would not substantially hinder the achievement of such policy;
(2) the action taken will minimize all adverse effects on such policies to the maximum extent practicable;
(3) the action will advance one or more of the other coastal policies; and
(4) the action will result in an overriding local or regional public benefit.
Such finding shall constitute a determination that the action is consistent with the WRP. With respect to state and federal actions, the Department will transmit the findings of the CCC to the relevant state agency for state consistency and DOS for federal consistency for the purpose of consultation.
The proposed rule also adds references to state and federal regulations to ensure that the inter-agency coordination of WRP consistency review, including the resolution of conflicts, occurs in accordance with those regulations and any applicable guidance, such as the guidelines for notification and review of federal agency and New York State agency actions appended to the approved WRP. Finally, any provisions regarding intra-agency coordination between the Department and the CCC and other “in-house” standards are proposed to be removed from the rule, and references to the no longer extant Board of Estimate are proposed to be removed.