The fall and winter seasons in and following a gubernatorial election year is a time when state regulatory agencies take a good look at what they’ve accomplished, what is in process and worth wrapping up before the next administration begins and to also plan tentative regulatory agendas for the next year. For the next few months there may be a little more uncertainty than usual as agency staffs shuffle and reorganize priorities with the new administration’s agenda. While legislative authorization to make and enforce rules remains in place, the public policies by which these rules are made or enforced may change. By late spring, early summer we should start to get a sense of agency policy priorities that will influence rulemaking over the next four years.

Recently Effective Regulations

The revised Asbestos Industrial Code Rule 56 (ICR 56) took effect on September 5, 2006. See NYSBA’s Government Affair webpage for links to more information on these revisions. We are still working with state Department of Labor’s Division of Occupational Health and Safety on an applicable variance for nonfriable work on residential projects. Updates on our negotiations will be provided to you as progress is made.

The state Department of Environmental Conservation (DEC) updated their Uniform Procedures rule. This is mainly meant to be a housekeeping revision to reorder and clarify some requirements and definitions for various agency permits. Click on the Part 621 Regulation link to view the revised rule at
http://www.dec.state.ny.us/website/dcs/upa/621adopted.html.

Finally, if your business portfolio includes manufactured homes (mobile homes) or the management of manufactured home parks; the state Department of State (DOS) issued emergency regulations on September 18 on licensing and certification standards for manufacturers, retailers, installers and mechanics that are necessary to implement a manufacturers and installers warranty seals program. View the text of the rule at http://www.dos.state.ny.us/code/Part1210.htm.

Promulgated and Soon to be Effective

There are two regulations, one state and one federal, that have completed rulemaking and are due to come into effect in the near future. First, the federal Environmental Protection Agency’s (USEPA) All Appropriate Inquiries Rule (AAI Rule) goes into effect on November 1, 2006. For those of you involved in brownfields projects, this may change your due diligence standards and practices a bit. The rule was crafted to be generally congruent to the new ASTM E-1527-00 Phase I ESA process and is meant to be consistent with revisions to that standard under new E-1527-05 as well. However, responsibilities for and the discretionary nature of certain activities may differ between the AAI Rule and the ASTM standards. For more information on the rule see http://www.epa.gov/brownfields/regneg.htm or http://www.epa.gov/brownfields/aai/aai_final_factsheet.htm.

Also on deck, the state DOS’s Minimum Administration and Enforcement Standards for the Uniform Code come into effect on January 1, 2007. To access the text of the rule along with a sample local law the DOS provided to assist municipalities in developing their code administration and enforcement programs see http://www.dos.state.ny.us/CODE/rulemake.htm. Local laws must address building permit requirements, inspections, stop work orders, certificates of occupancy, operating permits, complaints procedures, and recordkeeping requirements. Municipalities are also required make annual reports on their administration and enforcement activities to the DOS. If you want more certainty in the code administration and enforcement of the municipalities you work in, be sure to attend and participate in the local public hearings for these municipal laws. Familiarize yourself with the features required by the state rule and the local law language suggested by the DOS before you go so you know the parameters the municipalities will be working in to set up or revise their systems.

Still in Rulemaking

The comment period on the state’s 2007 Action Plan for HUD funded programs closed on October 13, 2006. The involved agencies expect to submit the final draft to HUD on November 15. HUD recently imposed performance outcome measurement requirements in the Consolidated Planning process so Action Plans are required to be a bit more specific in how their program addresses such goals as overcoming barriers to affordable housing. NYSBA submitted comments on how the state agencies may still have some influence to encourage local governments to address regulatory barriers notwithstanding home rule.

A second round of comments on rule revisions for the state DEC’s Environmental Remediation Program, the Superfund/Brownfields Program and the Remediation Stipulation Program closed in early August. Keep an eye on this rulemaking process at http://www.dec.state.ny.us/website/der/superfund/index.html The DOS reported to the Code Council that the 2006 version of the New York State Code based on the 2003 ICC codes is still under review at the Governor’s Office of Regulatory Reform. Given the timelines of rulemaking in New York it is unlikely that we will see a final version of the 2006 NYS Code until spring of 2007. We will keep you posted. Bob Hankin continues his stellar service on the Code Council and NYSBA now has representatives on every one of the Council’s technical subcommittees.

Looking into 2007

At the time of this writing, most of the state agencies have not yet issued regulatory agendas for 2007. However, in the new year you will be seeing a lot happening at the local level in relation to state programs. To assist local HBA’s who are interested in developing or enhancing government affairs programs to address some of these issues, NYSBA is creating a toolkit which we hope to have ready for release by the end of 2006. Expect to see the following as hot topics in 2007:

• Stormwater (of course) – you’re probably already familiar with the Construction Stormwater Toolbox on the DEC website, but if you build in municipalities that are regulated MS4’s you may want to check out the MS4 Toolbox at the following link: http://www.dec.state.ny.us/website/dow/toolbox/ms4toolbox/ms4_toolbox.html. A key thing to know at this point is that if an MS4 municipality does not use the preapproved local law to enact their program, see, http://www.dec.state.ny.us/website/dow/toolbox/swguidance/localaw06.pdf , the local officials should be crafting their law with the DEC’s Gap Analysis Workbook to be sure it includes the required components. As I mentioned earlier in regard to the new local laws to comply with the DOS’s Minimum Enforcement Standards for Administration and Enforcement of the Uniform Code, being knowledgeable about the state requirements for the MS4 local laws and participating in the public process to enact them is one way to achieve a little local consistency or at least predictability.

• Dam Safety Regulations – are in development at the DEC Division of Water and they should be out for comment in the coming months. While the regulations may not impact homebuilding per se, the Division noted in the last Water Management Advisory Committee meeting that there’s a need for education of local officials on the impacts of upstream development and the risks presented by downstream development as it relates to hazard ratings and safety requirements for dams. If you operate in an area impacted by the 2006 flooding, keep this issue on your radar.

• Wetlands – since the state bill was defeated you may see a shift in interest group focus to enacting local ordinances in addition to a new state bill. Also, expect new regulations, directives, etc. from the U.S. EPA and the Army Corps. of Engineers to clarify confusion resulting from the plurality ruling in Rapanos .
• Affordable Housing – this issue has finally achieved some prominence again. Getting municipal officials to address it in a comprehensive manner with something other than inclusionary zoning ordinances will, as always, be the key challenge. Since there is so much information out there, even on the NAHB website NAHB staff developed a Guidebook to the Housing Affordability Resources Toolkit, login to NAHB as a member for the Guidebook which gives you a brief description of the materials available through the NAHB Resources section of the website. The Guidebook can help you target the best resources to use in working with your municipality.

• Energy Star – watch for local ordinances incorporating Energy Star requirements, Frank Champitto of the NYSBA REF has recently assisted local HBAs in commenting on two local ordinances.
• Transfer Taxes – a.k.a. Community Preservation ordinances, open space is still the main driver but, if they must add yet another property tax, you may finally see a municipality or two link this to an affordable housing trust.

• EIS on-line – this requirement went into effect on February 26, 2006 and DEC had planned to get more specific about it when reviewing and revising the SEQRA rules in 2006. Nothing has appeared in the state register on this yet so expect it in 2007. Expect wrangling at the local level on who, what, where, how and the costs of this requirement. For more information see http://www.dec.state.ny.us/website/dcs/seqr/eisontheweb.html.

• More money is out there for municipalities to develop shared municipal services, water and sewer Infrastructure and broadband services, particularly in rural areas. If the municipalities you build in aren’t taking advantage of these resources get more information on these grant programs at http://www.qualitycommunities.org/index.asp and pass it along.