The 2022/2023 State budget included watershed (no pun intended) amendments to the regulations governing New York’s Freshwater Wetlands. It has been published that the changes to the Freshwater Wetlands Act are expected to capture approximately one million acres (1,560 square miles) of previously unregulated freshwater wetlands – the equivalent in landmass of 1/10^th the state of Rhode Island.  As part of the move, the New York State Department of Environmental Conservation (“DEC” or “Department”) is seeking information from stakeholders as it considers the revisions to the regulations and develops criteria to implement the Act. 

On January 3, 2024, the DEC published notice in the NYS Register identifying: (i) the three fundamental changes to the Freshwater Wetlands Act; (ii) the DEC’s proposed criteria for designating and identifying regulated wetlands; and (iii) a list of targeted questions intended to elicit stakeholder input and information to assist the Department in the development of future rulemaking.

The DEC summarized the Freshwater Wetlands Act amendments and timeline as follows:

• January 1, 2025 – The current official NYS Freshwater Wetlands Maps will no longer limit DEC regulatory jurisdiction to wetlands depicted on those maps. Instead, maps will become informational, and any wetlands that meet the applicable definition and criteria will be regulated by DEC and subject to permitting, regardless of whether they appear on the informational maps.

• January 1, 2025 – Small wetlands of “unusual importance” will be regulated, if they meet one of 11 newly established criteria listed in the new legislation.

• January 1, 2028 – The default size threshold for regulated wetlands will decrease from 12.4 acres to 7.4 acres. Small wetlands of “unusual importance” will continue to be regulated, if they meet one of the criteria listed in the new legislation.

The request for information focuses on the regulation of smaller freshwater wetlands and seeks input from interested parties regarding the proposed criteria for the identification of wetlands of “unusual importance.” Specifically, the DEC seeks feedback on the proposed defining characteristics of such wetlands, including the following:

• Watersheds that experience significant flooding and meet specific hydrologic criteria as well as minimum impervious surface coverage, limited floodwater storage zones, and those located within an Urban Area, as defined by the US census bureau.

• Habitat for an essential behavior of an endangered or threatened species, a species of special concern, or a species of greatest conservation need pursuant to federal and state designations.

• Vernal pools associated with amphibian breeding using varying regional factors and species to determine jurisdiction over the wetland; e.g., in the Lower Hudson-NYC-Long Island or Adirondacks Regions, one or more egg masses or larvae of Jefferson Salamander, Blue Spotted Salamander, or hybrids of Jefferson and Blue-Spotted Salamander.

• Wetlands with functions and values that are of local or general significance due to their location designated as a Critical Environmental Area pursuant to 6 NYCRR Part 617 or within the Adirondack Park and under the jurisdiction of the Adirondack Park Agency.

• Class I Wetlands characterized by a wetland with one of the following criteria: it provides habitat for an essential behavior of an endangered or threatened animal species; it contains endangered or threatened plant species; it falls within or is contiguous to a designated Significant Fish & Wildlife Habitat area; it is a tidally influenced wetland (and not regulated by Article 25); it is continuous to a tidally influenced wetland regulated by Article 25; it contains a wetland plant community identified as critically imperiled; it is a Nutrient-Poor Wetland, or it is located in an area designated as a floodway on the most current FEMA flood insurance rate map.

Admittedly, the list is hyper-technical and does not allow for ease of reading; however, its technicality highlights the importance of undertaking pre-acquisition/pre-development environmental diligence so that owners and developers can fully understand the impact wetlands may have on the footprint of any potential end-use.

Recognizing the complexity of the proposed regulation, the Department’s informational notice references proposed procedures for jurisdictional determinations to allow inquiring parties to submit a request to the Department for a determination on the presence of freshwater wetlands and whether certain activities trigger the need for a permit. The proposed regulations would obligate the Department to make such a determination within 90 days, subject to extension, and a period and procedure for appeals. While this tool can provide a level of regulatory certainty, its practical benefit is highly dependent upon development and other project-related timeframes. Whether the procedural revisions will streamline decision-making and enable expedited processing will be of vital consequence.

Finally, the informational notice identifies the DEC’s intent to authorize the extension of wetland adjacent areas to 300 feet for Nutrient Poor Wetlands[1]— increasing the regulated area for these specifically designated wetlands significantly.

With the amended regulations expected to capture an additional one million acres of real property across the state, these revisions are bound to impact prospective developments with ground-breaking dates in 2025. The opportunity to be heard as part of this information request and subsequent rulemaking begins now. The Department is accepting information responses through February 17, 2024.

[1] Defined to include the following wetland plant communities – black spruce-tamarack bog, coastal plain Atlantic which cedar swamp, coastal plain pond shore, coastal plain poor fen, dwarf shrub bog, highbush blueberry bog thicket, inland Atlantic white cedar swamp, inland poor fen, marl fen, medium fen, northern white cedar swamp, perched bog, pitch pine-blueberry peat swamp, rich graminoid fen, rich hemlock-hardwood peat swamp, rich shrub fen, rich sloping fen, seal level fen sedge meadow.

[View source.]