On April 8, 2022, the New York State Legislature passed budget legislation that includes a significant future expansion of the state’s wetland authority under the Environmental Conservation Law. Currently, the New York State Department of Environmental Conservation’s (DEC) wetland jurisdiction is limited to wetlands that are equal to or greater than 12.4 acres and identified on an existing freshwater wetlands map prepared by the DEC. The new legislation, however, will eliminate this requirement beginning in 2025.
Based on the new definitions of “freshwater wetlands” and “freshwater wetlands map,” DEC’s permitting authority will no longer be limited to what is mapped, as such maps are “not necessarily determinative” and show “the approximate location of wetlands.” The legislation instead creates a rebuttable presumption that mapped and unmapped areas meeting the definition of a freshwater wetland are regulated, including wetlands deemed of “unusual importance.” DEC’s permitting jurisdiction is also set to further expand in 2028 when the threshold for regulated freshwater wetlands drops to 7.4 acres.
Other significant changes include:
- Increased permitting fees in 2023.
- Permitting of wetlands, regardless of their size, if they are of unusual importance. “Unusual importance” means a wetland that possesses one or more of 11 characteristics as determined by the DEC, such as those:
o Located in areas that have experienced significant flooding in the past or expect significant flooding in the future,
o Located in urban areas,
o That provide habitat for an essential behavior of an endangered species, threatened species, or a species of special concern, and
o That are determined by the DEC to be of significant importance to the state’s water quality.
- Establishes that a determination by DEC that no regulated wetlands are present is valid for five years.
- Consultation between DEC and the federal government, colleges and universities, environmental organizations, and other entities to increase the accuracy of the freshwater wetlands maps.
- Provision by DEC of educational resources on the process for identifying freshwater wetlands.
- Posting by DEC of wetlands maps online.
Overall, the new legislation will increase the number of protected wetlands and make siting and developing large-scale projects, such as wind, solar, and transmission lines, a more involved process, including the increased likelihood of permitting and mitigation requirements. The increased availability of wetlands mapping tools may help developers site projects in the long run, but developers will need to be aware of smaller, unmapped wetlands on potential project sites that could soon come under state protection. A delineation will be required to rebut the presumption that an area is regulated and in practice will likely be necessary if a project is in close proximity to a mapped wetland to verify the boundary and eliminate the risk of impacts to a DEC-jurisdictional area that does not appear on the map.
If you have any questions regarding the content of this alert, please contact Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; Tom Paul, counsel, at tpaul@barclaydamon.com; or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team.