New York City has been investing a significant amount of resources in recent years in construction for the homeless, but hidden behind the scenes is a “remote yet crucial” environmental regulation that came into effect on February 15, 2022 – the “Unified Stormwater Rule” (USWR). This new regulation implemented by the Department of Environmental Protection (DEP) is quietly changing the development process. The USWR lowers the thresholds for stormwater construction and maintenance permits, expanding its reach to almost all large development and redevelopment projects, regardless of their purpose.
For developments built for the homeless, they can no longer obtain exemptions and fast-track approvals based on “public welfare purposes” as they did in the past. For developers, this means that in one of the most expensive cities for construction in the United States – New York, project costs will be higher, timelines will be longer, and risks will increase.
According to the DEP’s official website, the USWR aims to standardize stormwater quantity and quality management across the city, expanding regulation that was previously only applicable to certain areas to the entire city. Any development project that “disturbs soil over 20,000 square feet” or has “added impervious surface over 5,000 square feet” falls under the category of “covered projects” and must obtain a “Stormwater Permit” before commencing work, as well as submit a pollution prevention plan; they must also apply for a “Stormwater Maintenance Permit” upon completion or during the operational phase.
Peg O’Connor, the head of the DEP’s stormwater permitting unit, stated in an online “Permit Workshop” on May 31, 2024 (tinyurl.com/jbeh5yv2) that the new regulation has become a mandatory procedure for all development projects. Many design teams did not include these permits in their early schedules, leading to delays in building approvals and financing processes. She emphasized that for affordable housing projects managed by the Department of Buildings (DOB) and the Department of Housing Preservation and Development (HPD), these documents are now considered “essential” rather than “optional.”
O’Connor explained that developers must submit the DEP stormwater construction permit or a “non-jurisdictional determination” before the plan approval for PW1 engineering applications if they involve soil disturbance or the addition of impervious surfaces that meet the thresholds. Before construction completion and operation, a maintenance permit or termination notice must also be submitted. She reminded that if the project includes sidewalk reconstruction, curb extensions, or temporary construction areas, these street projects may also be considered part of the disturbance area; therefore, the design phase should comprehensively assess the affected areas.
Furthermore, O’Connor specifically mentioned issues regarding ownership changes. If a project is held by HPD or HDFC (Housing Development Fund Corporation) for homeless projects and plans to transfer it to a developer later on, the application must clearly state the owner entity and transfer arrangements. If the information is unclear, the permit may be rejected or delayed.
Insiders have pointed out that for homeless projects located on Coyle Street off U Avenue, the “Stormwater Permit” is no longer a minor issue but a critical factor in whether the project can commence on time. The development schedule depends not only on policy approvals from HPD or the Department of Homeless Services (DHS) but also on the technical review progress of the DEP and DOB. If the DOB approves plans without confirming DEP permits, they may be required to retract or rework them, causing delays and additional costs.
For example, the homeless development project at 2134 Coyle Street off U Avenue had its application for “delay in submitting the DEP Stormwater Construction Permit” approved by the DOB Director on January 31, 2024. However, the next day, a new version of the DEP Stormwater and Pollution Control Regulations (effective from February 1) redefined several terms and procedures. Since the USWR clearly states that DEP permits must be obtained before construction and cannot be exempted or delayed (tinyurl.com/mvznnukp), the legality of this “delay approval” and its potential risks have raised concerns. If the approval process does not comply with legal requirements, related building approvals may face the risk of being revoked or required to be corrected, and further developments are still under observation.