INTRODUCTION

On September 22, 2014, Governor Cuomo signed into law the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014 (CRRA). CRRA is intended to ensure that decisions regarding certain State permits and expenditures consider climate risk, including sea-level rise. Among other things, CRRA requires the Department of Environmental Conservation (Department) to adopt regulations establishing science-based State sea-level rise projections. Therefore, the Department is proposing to establish a new 6 NYCRR Part 490, Projected Sea-level Rise (Part 490). Part 490 will establish projections of sea-level rise in three specified geographic regions over various time intervals, but will not impose any requirements on any entity.

STATUTORY AUTHORITY

The statutory authority to promulgate Part 490 is found in Environmental Conservation Law (ECL) § 3-0319, which was added by CRRA. ECL § 3-0319 requires the Department to adopt regulations establishing science-based State sea-level rise projections by January 1, 2016. The promulgation of Part 490 by the Department will fulfill this statutory requirement.

LEGISLATIVE OBJECTIVES

CRRA was enacted with the purpose of ensuring that decisions regarding certain state permits, regulations, and expenditures include consideration of the effects of climate risk, including sea-level rise, and extreme weather events. Part 490 will implement one component of this objective by providing a common source of sea-level rise projections for consideration within these programs.

NEEDS and BENEFITS

CRRA enumerates several permitting, regulatory and funding programs in which the applicants, the Department, or other relevant State agencies shall be required to consider future climate risk, including sea-level rise. Adoption of Part 490 will help to ensure that sea-level rise projections are incorporated into these decision-making processes in a consistent, transparent manner and will contribute to regulatory certainty.

Stakeholder Outreach

The Department conducted outreach to stakeholders in several fora prior to proposing Part 490. This outreach included interaction with the authors of various reports regarding sea-level rise in order to gain understanding of the most current and applicable science. For example, the Department held a teleconference with the authors of two reports on March 6, 2015. Moreover, the Department held individual discussions with certain particularly interested stakeholders, such as the City of New York on June 1, 2015. In addition, the Department’s stakeholder outreach included five public informational and listening sessions, at which Department staff presented background on CRRA and the scientific information the Department considered in developing Part 490. These meetings were advertised through Departmental press release and in the Department’s Environmental Notice Bulletin, and were held on June 23-25 at locations in Albany, New York City, and Nassau and Suffolk Counties. At these meetings, the Department received input from stakeholders on Part 490.

Summary of Projection Format

Based in part on this input, the Department proposes to adopt five projections for each of three regions of the State. The three regions of the State are Long Island, New York City and the Lower Hudson River upstream to Kingston, and the Mid-Hudson River from Kingston upstream to the federal dam at Troy. These three regions exhibit small differences in relative sea-level rise due to local conditions. The five projections for these three regions are low, low-medium, medium, high-medium and high. These qualitative terms refer to the rate of rise, not to ultimate water levels, as warming of the Earth system has already resulted in a long-term commitment of at least six feet of global sea-level rise (Strauss, 2013¹). In other words, while there is some uncertainty regarding the precise rate at which sea level will rise, there is relative certainty that global sea level will ultimately rise at least six feet over current levels. Finally, each of these projections is presented for four different time periods: the 2020s, 2050s, and 2080s, and the year 2100.

Revisions to Part 490

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. In addition, the Department made changes to Sections 490.1 and 490.2 to expand upon the purpose and applicability of Part 490.

ClimAID Report

The Department’s proposed sea-level rise projections in Part 490 are based on sea-level rise projections included in Horton et al. (2014²), prepared for the New York State Energy Research and Development Authority, also known as the ClimAID report. ClimAID’s projections are based on the outputs of more than 20 global climate models, downscaled to New York, using the Intergovernmental Panel on Climate Change’s (IPCC) Representative Concentration Pathways (RCP) 4.5 and 8.5 as inputs. RCP 4.5 describes a scenario in which global greenhouse gas emissions increase only slightly before declining around the year 2040, leading to a stabilization of atmospheric greenhouse gas concentrations shortly after the year 2100. RCP 8.5 assumes no significant global emission-reduction policies are implemented and emissions increase, leading to higher atmospheric greenhouse gas concentrations.

Comparison of ClimAID Report to Other Reports

As required by ECL § 3-0319, the Department considered various sources of information in proposing to adopt projections in Part 490 based on the ClimAID report. This includes projections prepared for the National Climate Assessment and the New York State Resiliency Institute for Storms and Emergencies (RISE).

The Department has considered numerous factors in proposing to base Part 490 on the ClimAID projections rather than on more conservative, less protective projections based primarily on process modeling. First, adoption of projections based on the ClimAID report ensures that regulators, planners and others have access to projections developed specifically for New York State and accounting for regional and local factors not considered in development of global sea-level rise projections. Second, the ClimAID research was conducted by the same research team that provided the NPCC projections, using the same methodologies, which have been peer reviewed and published in established scientific journals. Third, ClimAID provides projections for the entire tidal coast of the state, including the Hudson River upstream to the federal dam in Troy, rather than just Long Island and New York City. Fourth, New York City has already adopted the NPCC/ClimAID projections for its planning purposes; a State regulation based on alternative projections could create confusion among the public, planners and regulated community.

Finally, the proposed projection distribution (low, low-medium, medium, high-medium and high) constitutes a range suitable for risk-based planning and review of projects of varying projected life times and criticality. Although unlikely to occur in the more immediate future, the inclusion of higher sea-level rise projections in Part 490 allows for decision makers to consider the possibility in the context of the programs specified by CRRA.

Perhaps most importantly, the question for decision makers is not if a critical sea level will be reached, but when. Strauss (2013³) calculated that historic greenhouse gas emissions have already committed the globe to a mean sea-level rise of 6.2 feet over current levels. Even more conservative projections of rates of sea-level rise indicate sea-level rise of approximately six feet within the next 150 years. Thus, a full range of projections in Part 490 that includes higher values is appropriate to allow for consideration of a level of sea-level rise that will likely occur at some point, even if the timing of such occurrence is uncertain.

COSTS

Part 490 will not impose any costs on any entity because the regulation consists only of sea-level rise projections and does not impose any standards or compliance obligations. Therefore, there are no costs associated with Part 490. Likewise, the regulation will also not impose any additional costs on the Department or local government entities.

LOCAL GOVERNMENT MANDATES

Part 490 will not create any mandates for local governments, including any additional recordkeeping, reporting, or other requirements.

PAPERWORK

No additional record keeping, reporting, or other requirements will be imposed under this rulemaking.

DUPLICATION

This proposal does not duplicate, overlap, or conflict with any other federal or State regulations or statutes.

ALTERNATIVES

Alternatives to this proposal include: (1) No action, or not establishing Part 490, (2) basing the adopted projections on other scientific reports, and (3) using an alternative projection format.

1) No Action - Not establishing Part 490 is not an available alternative because ECL § 3-0319 requires the Department to adopt a regulation establishing science-based State sea-level rise projections.

2) Other Reports – The Department considered basing its proposed projections on several alternative scientific reports other than the ClimAID report, including Parris et al., (2012⁴), completed for the National Climate Assessment, and Zhang et al., (2014⁵), prepared for RISE. The Department also reviewed and considered information contained in reports of the Intergovernmental Panel on Climate Change (Church et al., 2013⁶), New York State Sea Level Rise Task Force⁷ and the New York City Panel on Climate Change.⁸ The Department rejected basing the projections in Part 490 on any of these other reports because, among other reasons, the ClimAID report covers the entire tidal coast of the State, accounts for local and regional variations in sea-level rise, and incorporates the possibility of rapid ice melt.

3) Other Formats – The Department considered using a different projection format in Part 490, such as different geographic regions or time intervals. The Department is proposing Part 490 in a format that includes five projections for each of three geographic regions based on stakeholder input and because it is consistent with the format of the ClimAID report.

FEDERAL STANDARDS

There are no federal rules or other legal requirements relevant to Part 490. Therefore, this proposal does not result in the imposition of requirements that exceed any minimum standards of the federal government for the same or similar subject areas.

COMPLIANCE SCHEDULE

There is no compliance schedule required by the establishment of Part 490 because the rule does not impose any compliance obligations on any entity.

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¹ Strauss, B. 2013. Rapid accumulation of committed sea-level rise from global warming. Proc. Natl. Acad. Sci. USA. doi: 10.1073/pnas.1312464110

² Horton, R., D. Bader, C. Rosenzweig, A. DeGaetano, and W.Solecki. 2014. Climate Change in New York State: Updating the 2011 ClimAID Climate Risk Information. New York State Energy Research and Development Authority (NYSERDA), Albany, New York.

³ Strauss. 2013. Op. cit.

⁴ Parris, A., P. Bromirski, V. Burkett, D. Cayan, M. Culver, J. Hall, R. Horton, K. Knuuti, R. Moss, J. Obeysekera, A. Sallenger, and J. Weiss. 2012. Global Sea Level Rise Scenarios for the US National Climate Assessment. NOAA Tech Memo OAR CPO-1. 37 pp.

⁵ Zhang, Minghua, Henry Bokuniewicz, Wuyin Lin, Sung?128;Gheel Jang, and Ping Liu, 2014: Climate Risk Report for Nassau and Suffolk, New York State Resilience Institute for Storms and Emergencies (NYS RISE), NYS RISE Technical Report TR?128;0?128;14?128;01, 49 pp.

⁶ Church, J.A. 2013. Chap. 13: Sea level change, in climate change 2013: The Physical Science Basis, edited by T.F. Stocker, D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y.xia, V. Bex, and P. Midgley, pp 1137-1216. Cambridge Univ. Press, Cambridge, U.K.

⁷ New York State Sea Level Rise Task Force: Report to the Legislature. 2010. New York State Department of Environmental Conservation. 103 pp.

⁸ Horton et al. 2015. Op. cit.

A revised RFASBLG is not required for Part 490. The Department is proposing this rulemaking to provide a common source of sea-level rise projections for consideration within programs specified by the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014. Because the proposed rule will not impose any requirements on any entity, no small business or local governments will be directly affected by the rule.

A revised RAFA is not required for Part 490. The Department is proposing this rulemaking to provide a common source of sea-level rise projections for consideration within programs specified by the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014. Because the proposed rule will not impose any requirements on any entity, it will not create any new or additional effect on rural communities.

A revised JIS is not required for Part 490. The Department is proposing this rulemaking to provide a common source of sea-level rise projections for consideration within programs specified by the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014. Because the proposed rule will not impose any requirements on any entity, it will not have any effect on jobs or employment opportunities.

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.