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In November 2018, the New York State Department of Environmental Conservation (NYSDEC) determined that their proposed changes to the Division of Environmental Permits Policy DEP-00-2 - Assessing and Mitigating Visual Impacts will not have a significant adverse impact.  NYSDEC determined to accept comments on proposed changes through December 28, 2018. The Program Policy revises its 19-year old policy and provides improved guidance to staff when evaluating visual and aesthetic impacts. The proposed update can be found at https://www.dec.ny.gov/permits/6061.html.

The Policy applies when an action is proposed within the viewshed of a designated aesthetic resource listed in the Policy and DEC is lead agency, or in the case of an unlisted action and NYSDEC has permitting authority.  The policy is advisory only as to all other lead or involved agencies, but NYSDEC will suggest that they use it.

The Policy establishes the following six-step process for its staff’s evaluation of a project’s visual impacts: 

1. Verify the project sponsor’s inventory of visual resources, which includes specific categories of aesthetic resources.
2. Verify the project sponsor’s inventory of viewer characteristics, visual character and aesthetic value.
3. Verify the project sponsor’s visual assessment. 
4. Determine or verify the sponsor’s assessment of the potential significance of the visual impact (i.e., staff considers the “magnitude” and “importance” in determining the significance of a visual impact under SEQRA, such as in terms of severity, size, and the number of people/geographic area affected). 
5. Determine the measures needed to avoid, mitigate or offset the aesthetic impacts, if significant.  If a significant impact is identified, confirm whether reasonable avoidance or mitigation strategies were employed. 
6. Enforce mitigation measures.

The Policy updates the existing policy to include a current inventory of aesthetic resources, guidance to staff when assessments are necessary, more detailed guidance when making a determination of significance, and guidance when assessing aesthetic resources of local concern, among many others.

For more information please contact Thomas A. Shepardson, Esq. at (518) 487-7663, or tshepardson@woh.com.