NEW YORK STATE WETLANDS UPDATE
POSTED BY: terresa bakner and jordyn conway
Landowners in New York State should be aware that the State has moved to expand the freshwater wetlands that the State regulates. In 2022 the State Legislature and the Governor adopted amendments to the law and the NYSDEC has just proposed regulations to implement the law. The public comment period is open on the proposed regulations which NYSDEC has said will regulate an additional one million acres of wetlands in the State. What may have previously been wetlands regulated only by the federal government will now also be regulated by the NYSDEC and will be expanded to include at a minimum a regulated 100-foot upland adjacent area around the regulated wetlands.
The public comment period will remain open until September 19, 2024. The NYSDEC will host two virtual public comment hearings on September 10 and an in-person hearing on September 12. Additional information can be found at https://dec.ny.gov/nature/waterbodies/wetlands/freshwater-wetlands-program.
NYS Freshwater Wetlands Maps to be “informational” only.
The NYS Freshwater Wetlands Maps will no longer be regulatory, i.e. as a legal matter show where the regulated wetlands are located in the State, instead informational maps will be posted on the NYSDEC website showing where regulated wetlands may be found. Many wetlands that were formerly shown on the regulatory maps will expand in size and some wetlands not previously identified due to the age and condition of the maps may now exist on your property. The landowner will bear the burden of hiring a consultant to determine if there are any wetlands on the property and of working with DEC to obtain a jurisdictional determination that can conclusively establish a wetlands boundary on the property.
Wetlands of “Unusual Importance” of any Size
In addition to expanding the number of wetlands that are regulated which are 12.4 acres in size or larger, the Governor and the legislature have chosen to regulate wetlands of any size which are considered Wetlands of Unusual Importance because they meet any one of eleven newly established criteria. The following criteria are further defined by the proposed NYSDEC regulations which are currently being circulated for public comment.
The eleven criteria for wetlands of unusual importance are listed as follows:
- The wetland is located in a watershed that has experienced significant flooding in the past, or is expected to experience significant flooding in the future from severe storm events related to climate change;
- It is located within or adjacent to an urban area, as defined by the United States Census Bureau as of 2020;
- It contains a plant species occurring in fewer than thirty-five sites statewide or having fewer than five thousand individuals statewide;
- It contains habitat for an essential behavior of an endangered or threatened species or species of special concern as defined under section 11-0535 of this chapter or listed as a species of greatest conservation need in New York's wildlife action plan;
- It is classified by the department as a Class I wetland;
- It was previously classified and mapped by the department as a wetland of unusual local importance;
- It is a vernal pool that is known to be productive for amphibian breeding—NYSDEC is proposing to establish an 800-foot regulated adjacent area for such resources;
- It is located in an area designated as a floodway on the most current Digital Flood Insurance Rate Map (DFIRM) produced by the Federal Emergency Management Agency;
- It was previously mapped by the department as a wetland on or before December 31, 2024;
- It has wetland functions and values that are of local or regional significance; or
- It is determined by the commissioner to be of significant importance to protecting the state's water quality.
The Urban criteria has the greatest impact. Using the US Census Bureau Map for Urban areas (and areas adjacent to urban areas) leads to many suburban or village areas being considered Urban. This is important because areas that one generally considers suburban like the Towns of Guilderland, Colonie, Clifton Park, Halfmoon and Bethlehem are, in fact, identified as Urban. For example, a wetland as small as 1/10 of an acre will be regulated by the NYS DEC and have a 100-foot adjacent area. This will vastly increase the footprint of the regulated area. Having to obtain a discretionary permit from DEC for most housing and development projects will be a substantial burden for the regulated public, particularly given the lack of NYS DEC staff for issuing such permits. The enemy of housing projects is delay and increased costs both of which will result from the expansion of regulation of wetlands of any size in urban areas.
Grandfathered Projects
While the legislation appears more restrictive, the proposed regulations provide a few ways in which a project can be grandfathered, i.e. have reached a stage where the project is allowed to move forward for a period of time before the new regulations apply to the project. A project that has been issued a DEC Freshwater Wetlands permit or a Notice of Complete application of a DEC Freshwater Wetlands permit before January 1, 2025, may continue operating under such authorization until the permit expires.
The proposed regulations also provide that a project may be grandfathered if prior to January 1, 2025:
- the Project has a Full Environmental Impact Statement (“FEIS”) that has been accepted by the lead agency as complete,
- the Project has received a negative declaration on a Type 1 action from the lead agency, or
- the project has received site plan approval from the municipality.
If a Project meets one of these qualifications, then Major projects as defined under the DEC regulations will be grandfathered until January 1, 2028, and Minor projects as defined under the DEC regulations will be grandfathered until January 1, 2027. It is not clear, however, if your project is neither Major nor Minor what date will apply.
These new regulations will profoundly affect development in the State. While the Army Corps of Engineers has regulated small wetlands, there was never a 100-foot upland buffer that was also regulated. Moreover, choosing to regulate small wetlands in Urban areas may push developers into greenfield areas where public sewer and water are not available for projects. The expense of obtaining these permits which can take as long as two years will also substantially contribute to the affordable housing crisis in the State. Moreover, this assumes that the NYS DEC staff will be willing to issue permits for projects that affect wetlands and their buffer areas which they have been reluctant to do in the past. The stringent permitting standards are not proposed to be changed in this rulemaking, although DEC staff have said that they are considering developing general wetlands permits that may provide some relief.
Wetlands will be regulated at 7.4 acres instead of 12.4.
Lastly, while this remaining provision will not take effect until January 1, 2028, it continues to show DEC’s increasing expansion of its wetland regulation by lowering the default threshold from 12.4 acres to 7.4 acres. Of course, this change will seem relatively tame when compared to the impact of regulating “Wetlands of Unusual Importance” of any size discussed above.
Conclusion
What does this mean to people who live in this State? A substantial reduction in the value of many properties; a loss of money already expended for projects that previously had many of their approvals but have not yet been built and/or do not meet the “grandfathering” provision proposed in the draft regulations. Residents of New York State can also expect a continuation of the existing housing crisis with more expensive housing and less affordable housing available. The proposed regulations also create a regulatory quagmire due to a lack of State resources to process permits and a substantial increase in the ability of NIMBYs to oppose projects.
The text of the proposed regulations can be found at: https://dec.ny.gov/sites/default/files/2024-07/wetlands_et_pt664.pdf.
