As we reported in April 2022, the New York State legislature amended the Freshwater Wetlands Act (Act) to significantly expand the New York State Department of Environmental Conservation’s (NYSDEC) wetlands authority. Now, NYSDEC has released draft regulations, “6 NYCRR Part 664, Freshwater Wetlands Jurisdiction and Classification,” for public comment further clarifying the scope of its authority and how it will regulate and classify the current and new wetlands under its jurisdiction. By law, the regulations must be finalized and effective January 1, 2025, and will have potentially significant ramifications for projects still being planned or in development.
Under the Act as amended, NYSDEC regulates all wetlands (not only those that are mapped) that are 12.4 acres (7.4 acres in 2028) or larger and a subset of smaller wetlands of “unusual importance” as determined by NYSDEC. This latter category creates additional uncertainty for project planners because it is based on specific criteria rather than a size delineation. The regulations describe wetlands of unusual importance based on 11 newly established statutory criteria. Notably, wetlands less than 12.4 acres that would be protected include:
- urban wetlands;
- wetlands located in watersheds that have experienced significant flooding in the past or are expected to experience significant flooding in the future from severe storm events;
- wetlands containing habitat for an essential behavior or an endangered or threatened species as well as species of special concern and species of greatest conservation need;
- all Class I wetlands;
- vernal pools known to be productive for amphibian breeding (based on the number of salamander and/or frog egg masses); and
- wetlands that are determined to be of significant importance to protecting the state’s water quality as determined by NYSDEC.
The draft regulations also expand NYSDEC’s jurisdiction over wetland buffers, referred to as “adjacent areas.” Since the Act was passed in 1975, NYSDEC has regulated activities that occur within a 100-foot area adjacent to the wetland boundary. The draft regulations expand the adjacent area to 300 feet for nutrient-poor wetlands and 800 feet for vernal pools known to be productive for amphibian breeding. These wetlands and their expanded adjacent areas are further defined in the regulations.
The draft regulations also have ramifications for project sites with multiple wetlands. NYSDEC codified a longstanding agency practice of classifying and regulating two or more freshwater wetlands as a single wetland if they are no more than 164 feet apart. However, the draft regulations clarify that these two wetlands must be hydrologically connected on the surface or the subsurface. This latter potential limitation leaves much to the discretion of the agency. Further, if two wetlands are deemed connected, the wetland with the highest (most protective) classification will apply to the entirety of the wetland complex. These wetland classifications are based on the degree of benefits supplied by a wetland, such as protected species habitat, rarity of ecosystem type, and flood mitigation.
Because the prior official wetlands maps can no longer be consulted to determine jurisdiction, a wetland delineation and a jurisdictional determination from NYSDEC is now more likely to be needed when planning and developing a project. A landowner may request from NYSDEC a jurisdictional determination, a wetland delineation (or verification of delineation), and/or a determination of whether a permit is required for a planned activity. NYSDEC generally has 90 days to respond to the request. A jurisdictional determination is appealable and is valid for five years.
The clock is ticking on projects currently being planned or in the early stages of development and permitting to avoid or delay the onset of potential new wetland jurisdiction determinations and requirements for those projects. As currently proposed, a project would have to reach one of several possible milestones prior to January 1, 2025:
- issuance of a wetlands permit by NYSDEC;
- issuance of a notice of complete application from NYSDEC for a wetlands permit application;
- acceptance of a Final Environmental Impact Statement by a lead agency or a negative declaration for a Type I action under the State Environmental Quality Review Act; or
- receipt of local site plan approval.
The public comment period is open through September 19, 2024. Comments can be submitted to WetlandRegulatoryComments@dec.ny.gov with “Wetlands Part 664 Comments” in the subject line. Comments sent via mail should be addressed as follows:
NYSDEC
Attn: Roy Jacobson Jr.
5th Floor
625 Broadway
Albany, NY 12233-4756
NYSDEC will also hold two virtual public comment hearings on September 10, 2024, at 1:00 p.m. and 6:00 p.m. and an in-person hearing on September 12, 2024, at 1:00 p.m.
Interested parties can register for the public comment hearings on NYSDEC’s website.
If you have any questions regarding the content of this alert, please contact Tom Paul, partner, at tpaul@barclaydamon.com; Ari Goldberg, counsel, agoldberg@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team.