Comments on the New York Part 490 Projected Sea-Level Rise Amendments

The New York State Department of Environmental Conservation (DEC) has proposed Amendments to Part 490, Projected Sea Level Rise and Comments that are due on April 29.  This post describes my comments on the proposed amendment and requests that New Yorkers who reading this before April 29 submit comments.  Don’t worry, I will give language.

The proposed amendments revise the projections of future sea-level rise required by New York regulations.  It is flawed because the methodology estimates an unrealistically high projected sea-level for the Community Risk and Resiliency Act flood risk management applications that will use the projections.  Unless more realistic estimates are used permitting applications in areas near tidal zones will be required to incorporate flood levels that will not be expected in the lifetime of the project.  That would be a hidden cost for the net-zero  transition of the Climate Leadership & Community Protection Act (Climate Act).

I have followed the Climate Act since it was first proposed, submitted comments on the Climate Act implementation plan, and have written over 400 articles about New York’s net-zero transition. The opinions expressed in this post do not reflect the position of any of my previous employers or any other organization I have been associated with, these comments are mine alone.

Overview

The summary of the Part 490 proposed amendments states that: “The goal of the proposed amendments is to provide up-to-date science-based projections of future sea level rise.”  This is another example of the many ways that the Climate Act is intruding on many aspects of society.  The Climate Act established a New York “Net Zero” target (85% reduction in GHG emissions and 15% offset of emissions) by 2050.  It includes an interim 2030 reduction target of a 40% reduction by 2030 and a requirement that all electricity generated be “zero-emissions” by 2040. The Climate Action Council (CAC) was responsible for preparing the Scoping Plan that outlines how to “achieve the State’s bold clean energy and climate agenda.”  In brief, that plan is to electrify everything possible using zero-emissions electricity. The Integration Analysis prepared by the New York State Energy Research and Development Authority (NYSERDA) and its consultants quantifies the impact of the electrification strategies.  That material was used to develop the Draft Scoping Plan outline of strategies.  After a year-long review, the Scoping Plan was finalized at the end of 2022.  In 2023 the Scoping Plan recommendations were supposed to be implemented through regulation, PSC orders, and legislation but implementation is behind schedule.  The proposed amendments to the sea-level projections are a hidden aspect of the Climate Act that has significant potential impacts.

Part 490 Projected Sea-Level Rise

The Regulatory Impact Statement (RIS) for this proceeding describes the regulation’s statutory authority and legislative objectives, the proposed changes, needs and benefits, and costs.  It explains:

On September 22, 2014, the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014 (CRRA), was signed into law. CRRA, among other things, established Environmental Conservation Law (ECL) § 3-0319. ECL § 3-0319 requires the Department of Environmental Conservation (Department) to adopt regulations establishing science-based sea level rise projections for New York State and to update them no less than every five years. The Department established a new Part 490 of Title 6 of New York Codes, Rules, and Regulations (6 NYCRR), “Projected Sea-level Rise” (Part 490) in February 2017 and is updating the regulation through the current rulemaking.

The proposed amendments are an update of the 2017 sea-level rise projections.  While I am not absolutely sure I believe the reason that this amendment was delayed was because the primary reference, New York Research & Development Authority New York State Climate Impacts Assessment, was not available within the five-year period.  Even so, the documents for the Assessment are all marked “Interim Version for Public Release” which calls into question their use for a policy document.

The summary of the Part 490 proposed amendments states that:

The goal of the proposed amendments is to provide up-to-date science-based projections of future sea level rise. Part 490 does not create a mandate on local governments. Part 490 does not impose any compliance obligations on any entity.

While technically and legally correct, the excuse not to include costs and the argument that there are no compliance obligations or mandates on local governments has significant ramifications.  The fact is that there are compliance obligations that are affected by the Part 490 rulemaking.  DEC selectively chose to emphasize analyses that support the “high-end storyline” without regard to how the sea-level rise projections will be used. There are relevant, plausibility, timing, and cost implications that I believe should be added to the Regulatory Impact Statement.

Mandates on Local Governments

The CRRA as amended by the Climate Act clearly creates indirect mandates on local governments.  The New York State Flood Risk Management Guidance for Implementation of the Community Risk and Resiliency Act  includes “recommendations” for the use of sea-level rise that are essentially mandates.  In another example where the projections are used, the DEC webpage Mainstreaming Consideration of Climate Change includes the following:

Consideration of future physical climate risk

As originally enacted, the CRRA required applicants for permits or funding in a number of specified programs to demonstrate that future physical climate risk due to sea-level rise, storm surge and flooding had been considered in project design, and that DEC consider incorporating these factors into certain facility-siting regulations.  The CLCPA amended the CRRA to include all permits subject to the Uniform Procedures Act. The CLCPA also expanded the scope of the CRRA to require consideration of all climate hazards, not only sea-level rise, storm surge and flooding, in these permit programs. 

In my comments I argued that that while Part 490 may not directly create a mandate on local governments, all permits must consider the sea-level rise climate hazard which is essentially a mandate affecting all governmental agencies.

Part 490 Proposed Amendments

The RIS description of the proposed sea-level rise projection amendments with my annotated comments follows:

Table 4. Updated projections of sea level rise for three tidal regions of New York State, based on the Department’s proposed methodology. Projections are in inches, relative to a 1995-2014 baseline, and are based on a combination of the SSP2-4.5, SSP5-8.5-medium-confidence and SSP5-8.5-low-confidence projections, with the addition of a RIM scenario.

Part 490 is intended to give permitting authorities information on the full range of potential sea-level rise.  In reality the CRRA design considerations that use the sea-level rise projections focus on the highest values.  New York State Flood Risk Management Guidance for Implementation of the Community Risk and Resiliency Act  states that “Applicants and programs are also encouraged to consider the following during project siting, design and review” states:

Applicants for projects involving new or replacement critical infrastructure should consider the full range of projected flooding, including the highest adopted projections of sea-level rise, during the expected service life of the project. Where adherence to the highest guideline is not feasible, due to practicality, costs, risk tolerance, and/or environmental effects, applicants should carefully describe and justify designs not adhering to the most restrictive guideline.

Note the requirement to use “the highest adopted projections of sea-level rise” includes the caveat to consider the “expected service life of the project”.  That is  missing piece in the RIS.   The RIS emphasizes the point that the Intergovernmental Panel on Climate Change (IPCC) has not indicated the relative probabilities that any of the illustrative scenarios included in the latest assessment report (AR6) will occur.  However, CRRA infrastructure applications need to consider the likelihood of sea-level rise levels to determine practicality, costs, risk tolerance, and/or environmental effects.  The RIS argues that focusing on the most probable outcome has risks and warns of much higher potential sea-levels. 

Furthermore, Hinkel et al. (2015) warn that sea level rise projections based on process-based models, such as those used by IPCC, are primarily intended for the purpose of understanding earth system physics and are not appropriate for risk-based decision making as they do not fully incorporate the effects of accelerated ice melt. They warn that projections based on the IPCC AR5 projections of mean global sea level rise of 11 to 39 inches by 2100 may not be adequate for risk management due to the intolerably high residual risk associated with rapid ice melting Parris et al. (2012) also cautioned that focusing only on the most probable outcome could lead to vulnerability or maladaptation.

The reference to “intolerably high residual high residual risk associated with rapid ice melting” ignores the expected service life of the project consideration.  The RIS explains that the decision makers need to understand the full range of potential risk but does not acknowledge that their presentation of results discourages the use of anything but the high projections.  The result is that development near the tidal shoreline is planning for extremely high projected sea-level rise.  A New York City project to increase a park to handle 8 to 10 feet of sea-level rise is include in “a $1.45 billion flood protection project that backers say befits the nation’s largest city, a massive project that will include the construction of a 2.4-mile system of walls and gates along the East River”.  That is only a fraction of the harbor front in the City so it makes sense to use more reasonable estimates of sea-level rise given the need to protect the entire harbor of New York, but it is easier for DEC to just recommend the biggest number to “be safe”.

Decision makers, including residents and local leaders, should understand the full range of potential risk. Communities and stakeholders in New York State that have been presented with the ClimAID projections have tended to adopt and plan for high levels of sea level rise rather than more moderate levels. These stakeholders have placed a high degree of importance on ensuring the viability of proposed infrastructure investments and the social and economic fabric of their communities from even unlikely eventualities.

The “science-based” regulation and the guidance did a disservice to New Yorkers because the risk management approach did not adequately address tradeoffs between costs and likelihood of “unlikely eventualities”.  The sea-level rise projections rely on cherry-picked studies and ignoring any work that does not fit the extreme scenario used and that is not “science”. Unlikely things that just might happen in the distant future are not “eventualities”. All the extreme sea-level rise projections use the implausible high emissions scenario embodied in Representative Concentration Pathway (RCP) or Shared Socio-economic Pathways (SSP) RCP/SSP8.5.  There is overwhelming evidence that the coal use, population growth, and neglect to consider any decarbonization policy assumptions in those scenarios are inconsistent with observed reality.  The National Oceanic Atmospheric Administration (NOAA) Geophysical Fluid Dynamics Laboratory (GFDL) description of their globcal climate modeling approach that states “SSP5-8.5 is a very high greenhouse gas emissions scenario – and unlikely to happen – where carbon dioxide emissions triple by 2075″ and does not use it for their recommended projections.

Notwithstanding the arguments in the following paragraph from the RIS trying to justify its use, the fact is that using these projections are inappropriate to use in this context.  I do not dispute that the potential for rapid ice melt exists that would cause a spike in sea levels.  However, I maintain that is improper to use in this context because it is a low probability event but that in the time frame of CRRA infrastructure projects it is a much lower possibility. The argument that Part 490 guidance must address sea level rise that will “likely occur at some point” without consideration of the use of the projections is inappropriate.  The State simply cannot afford the ramifications of the insistence to remove risk entirely.

Finally, as explained above, sea level rise will continue for many centuries as the earth system comes into equilibrium over many centuries or even millennia. Thus, the question for decision makers is not if a critical sea level will be reached, but when. Strauss (2013) calculated that historic emissions have already committed the globe to a mean sea level rise of 6.2 feet. Levermann et al. (2013) estimated that the current international target of 2°C warming will result in an eventual mean global sea level rise of more than 15 feet after 2000 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. The Department acknowledges that current GHG emissions policies would result in actual emissions lower than projected by SSP5-8.5. Thus, the inclusion of higher projections of sea level rise, especially those based on SSP5-8.5, could lead to consideration of conditions that are unlikely to occur, at least in the more immediate future. Unfortunately, current literature does not provide a basis for assessment of the emissions levels at which ice shelf and marine ice cliff instability, important factors in sea level rise in high emissions scenarios, such as SSP5-8.5, become significant.

This paragraph characterizes my concern that the purpose of the sea-level rise projections was not considered enough.  Preparing for the next 2000 years for a city that was founded only 400 years ago is silly.

This gap in the literature, however, does not relieve decision makers from the responsibility to at least consider the potential consequences of future events about which scientific uncertainty remains. Adoption of several levels of projections allows for consideration of risk tolerance in decision making. The high or RIM projections might be used for long-term projects for which there is low risk tolerance, for example, while lower projections may be appropriate for consideration in situations in which risk tolerance is high. Inclusion of low-confidence, but plausible, projections provide benchmarks against which long-term decisions, e.g., those regarding critical infrastructure and land-use change, can be evaluated for high-consequence events. If Part 490 did not include higher projections of sea level rise, decision makers would not be able to even consider the possibility of such levels occurring. The Department proposes, therefore, to adhere to the recommendation of Stammer et al. (2019) to include “high-end storylines,” that reflect physical processes about which high uncertainty exists, i.e., the RIM scenario, with probabilistic projections.

The last paragraph in this section clearly describes the misguided DEC approach.  There is no question that decision-making when there is high scientific uncertainty is difficult.  From a risk management perspective all factors must be considered.  In this instance, the recommendation to use the higher sea-level rise projections for long-term projects does not consider CRRA infrastructure life expectancies which are shorter than the time frame of the high-risk impacts.  Furthermore, it can be argued that the “low” confidence sea-level rise estimates are “no” confidence events because they rely on SSP-8.5 which is implausible.  I do not believe that a “high-end storyline” approach is appropriate for regulatory guidance.

Summary of My Comments

My detailed comments describe the observed sea-level rise at the Battery monitoring station in New York City, the methodology used to project sea-level rise, and compare the sea-level rise projections and observations (table below).  The following table compares the projected sea-levels using the observed from 1850 to present and 1984 to present with the projections of sea-level rise. Importantly the observed sea-level rise is less than the 50^th percentile, “medium confidence” Part 490 sea-level projections.  In other words, the observations indicate that the medium confidence projections are conservative estimates of sea-level rise.  I also found that comparing the acceleration of sea-level rise necessary to comport with the projected rates with the observations indicates that there is no sign that the “high-end storyline” projections are realistic.

Compare 2024 proposed sea level rise projections (inches of rise relative to 1995-2014  baseline) to sea-level rise projected using observed trends since 1850 and 2014 at the Battery Monitoring Station

The RIS argues that observed sea-level rise projections are not appropriate to use for future estimates because they do not account for projected global warming.  To address this concern the Energy and Environmental Alliance of New York proposed a “pledge and review” alternative approach in 2016.  My comments argue that this is a better approach.  Given the uncertainties of modeling both global warming and the associated sea-level rise along with the model over-estimates of warming it is prudent to assume that the sea-level trend observed over the last 150 years will continue until the observations indicate otherwise. 

There is a section in my comments that describes how the sea-level rise projections are intended to be used for flood risk management.  The RIS does not consider that flood risk management must incorporate probability of occurrence.  The Part 490 sea-level rise projections do not because of the emphasis on the “high-end storyline”.  Even though the RIS appropriately describes all the scenarios and how the data were collected and used, the RIS risk analysis is flawed because it does not weigh potential results against benefits and consequences.  The comments describe a more appropriate risk management approach. 

Summary of Recommendations

The sea-level rise projections in the proposed amendment need to be reconsidered.  The over-arching problem is that the low-likelihood, high-impact storyline that incorporates the rapid ice melt scenario is dependent upon the RCP/SSP 8.5 high emissions scenario and does not account for the near-term applicability of the sea-level projections for CRRA applications.  Even the RIS acknowledges that “current GHG emissions policies would result in actual emissions lower than projected by SSP5-8.5.”  Because the high greenhouse gas emissions are a necessary condition for the rapid ice melt low-likelihood, high impact scenario, that emissions scenario should not be used for sea-level rise recommendations.  Furthermore, the timing of the rapid ice melt scenario is extremely unlikely to occur in the time frame of infrastructure projects in the New York State Flood Risk Management Guidance for Implementation of the Community Risk and Resiliency Act  guidance that refers to Part 490 sea-level rise.  

The RIS claims that because 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” that no costs are associated with Part 490.  However, the pertinent cost issue is the difference between the recommended alternative and the alternatives described in the RIS. The “high-end storyline” approach has an impact on costs and the failure of the RIS to address them is a disservice to the citizens who will have to foot the bill.  The RIS should be modified to compare costs with the alternatives included.

Any projection that uses the RCP/SSP 8.5 high emissions scenario overestimates sea-level rise values.  Given the acknowledged uncertainties with sea-level projections and the over-predictions of global warming with current global climate models, the pledge and review approach should be used to determine if accelerated sea-level rise consistent with the “high-end storyline” projections are observed.  The sea-level projections consistent with SSP2-4.5 should be used because these sea level rise projections are associated with the most likely conservative estimates of potential emissions and the numbers are consistent with observed sea-level rise.  If future observations indicate that this scenario is no longer conservative then the projections can be modified accordingly.

How To Provide Written Comments

I encourage my New York readers to submit written comments by the 5:00 PM April 29, 2024 deadline. I have prepared a detailed explanation of the process at this link.  The link also includes a condensed comment that addresses the key points described above.

The link provides the recommended comment. 

1. Enter the following address in your address line: climate.regs@dec.ny.gov
2. Put Comments on Part 490 in the Subject line
3. Copy the comment text in the link into the body of your email. 
4. Submit it

If you are inexperienced with the DEC rulemaking process let me explain what happens next.  If you are lucky, you will get an acknowledgement that your comment was received.  DEC staff are required to read the public comments and the rulemaking requires a response to comment document.  At some point there will be a document that includes a response to each comment and recommendation.  It would be especially useful if you have a specific example of a concern related to the projections to include that in your comments. If you prepare your own comments, then they will have to respond to that separately, but all the comments submitted using my recommendation will be consolidated.  Reading comments and writing a response does not mean DEC will change anything in their proposed rulemaking.   

I have submitted comments for countless proceedings over the last 40 years.  Sadly, over the years DEC has become more and more politically driven to the point now that all rulemaking policy decisions are ultimately decided by the Administration regardless of the science.  To increase the chance that any of the comments and recommendations will actually be implemented, I suggest sending a copy to your legislators.  Like most of the Climate Act implementation components very few people know what is happening and the ramifications of the actions.  If the legislators start asking the Administration questions about the use of implausible scenarios that will make development near the shorelines more expensive, there may be a political response towards consideration of tradeoffs.  Absent that the only solace is the record will show that the State was warned that their policies were ill-advised when the proposed sea-level recommendations fall far below the observed rise.

The rule-making process includes a perfunctory public hearing.  The Part 490 hearing was held on April 22.  The hearing officer described the rule making process and Mark Lowery from DEC went through the following slide.  That was all over in ten minutes.  Two people signed up to give comments.  I signed up but could not talk because of a persistent cough.  The other person’s comments were totally unrelated.  She wanted to thank DEC for setting up raptor nesting boxes.  For the record all comments are considered equally so nothing was lost.  In fact, I showed up for a hearing one time and a friend from DEC who was working on the proceeding basically said the hearings were a waste of time and that they preferred the written comments.

Conclusion

Given the poor turnout for the public hearing, there does not appear to be much interest in this rulemaking.  I doubt that these comments and recommendations will have any effect on the rulemaking because there is too much institutional inertia.  The record for some rulemakings makes a big deal about the number of comments that support their position.  If the negative comments outweigh those supporting the proposal, then it will be interesting to see how the documentation spins that.  In order to find out please, submit a comment.  Thanks.