As previously described in a Jan. 12, 2024 legal alert and a July 12, 2024 legal alert, the New York State Department of Environmental Conservation (DEC) promulgated amendments to freshwater wetlands regulations, changing 6 NYCRR Part 664, Freshwater Wetlands Mapping and Classification to Freshwater Wetlands Jurisdiction and Classification.
These regulatory changes took effect Jan. 1, 2025, and implement amendments to the New York Freshwater Wetlands Act from 2022. The newly adopted regulations define key terms, describe the revised freshwater wetland classification system, present criteria for the new expanded identification of Wetlands of Unusual Importance, and describe procedures DEC uses in making jurisdictional determinations to enhance consistency and conservation.
In 2022, New York's Freshwater Wetlands Act (Environmental Conservation Law Article 24 – the Act) was amended to direct several changes to the way DEC administers its program. The following is a brief summary of the legislative and regulatory amendments and their effective dates:
- Jan. 1, 2025 - The former NYS Freshwater Wetlands Maps will no longer limit DEC regulatory jurisdiction to wetlands depicted on those maps. As of Jan. 1, the NYS Freshwater Wetlands Maps will be referred to as “Previously Mapped Freshwater Wetlands” and will serve only as informational tools. Jurisdictional protections for previously mapped freshwater wetlands will remain, as DEC’s jurisdictional authority has expanded to include wetlands meeting the freshwater wetland definition and state jurisdictional criteria for protection. Jurisdictional determinations and wetland classifications will be made remotely (primarily through desktop review) based on wetland acreage and characteristics meeting jurisdictional criteria.
- Jan. 1, 2025 - Wetlands of any acreage will be considered of "unusual importance" and will therefore be regulated if they meet one or more of 11 newly established criteria listed in the new regulations. These are:
- Significant flooding: It is located in a 12-digit Hydrologic Unit Code that meets all of the following three criteria: 1) it has 2% or more impervious surface based on recent land cover data; 2) less than 5% of its surface area is comprised of floodwater storage zones in the form of lakes, ponds, reservoirs or wetlands based on recent land cover data; and 3) it is located within an urban area or within 4 kilometers (2.48 miles) of an urban area as defined and identified by the United States Census Bureau.
- Urban areas: It is located within or adjacent to an urban area as defined and identified by the United States Census Bureau.
- Rare plants: It contains a plant species occurring in fewer than 35 sites statewide or having fewer than 5,000 individuals statewide, as documented by DEC.
- Rare animals: It meets one or more of the following criteria, as documented by DEC: 1) it contains a habitat that is utilized for an essential behavior of a species listed as endangered or threatened by DEC or by the United States Department of the Interior (DOI); 2) it contains habitat that is utilized for an essential behavior of a species of special concern (a native species of fish and wildlife found by DEC to be at risk of becoming threatened in New York) or a species of greatest conservation need listed in the NYS Wildlife Action Plan (Sept. 2015), with habitat loss having been identified by DEC as a moderate to very high threat to NYS populations.
- Class I: It is classified by DEC as a Class I wetland.
- Unusual local importance: It was previously classified and mapped by DEC as a wetland of unusual local importance and contained wetland characteristics.
- Vernal pools: It is a vernal pool that is known to be productive for amphibian breeding. A vernal pool is known to be productive for amphibian breeding within a region of the state where DEC has determined one or more of the following exist in a particular vernal pool complex: 1) in the Hudson-Mohawk Region, 25 or more Spotted Salamander egg masses, or 10 or more Wood Frog egg masses: 2) in the Great Lakes Region, two or more Spotted Salamander or Wood Frog egg masses; 3) in the Lower Hudson-NYC-Long Island, Adirondack and Southern Tier Regions, 10 or more Spotted Salamander egg masses or 15 or more Wood Frog egg masses; 4) in the Lower Hudson-NYC-Long Island Regions, one or more egg masses or larvae of Jefferson Salamander, Blue-Spotted Salamander or hybrids of Jefferson and Blue-Spotted Salamander; 5) in the Great Lakes, Southern Tier or Hudson-Mohawk Regions, 20 or more egg masses or larvae of Jefferson Salamander, Blue-Spotted Salamander or hybrids of Jefferson and Blue-Spotted Salamander; or 6) in any region, one or more egg masses or larvae of Eastern Tiger Salamander or Marbled Salamander.
- Floodways: It is located in an area designated as a floodway on the Digital Flood Insurance Rate Map ‘National Flood Hazard Layer,’ produced by the Federal Emergency Management Agency.
- Previously mapped wetlands: It was previously included on the New York State Freshwater Wetland Maps by DEC as a regulated wetland on or before Dec. 31, 2024, and contain wetland characteristics.
- Local or regional significance: It has wetland functions and values that are of local or regional significance because it meets one or more of the following criteria: 1) the wetland is located within an area specifically designated as a Critical Environmental Area with specific reference to wetland protection by a local agency in its written justification supporting the designation; or 2) the wetland is partially located within the Adirondack Park and under the jurisdiction of the Adirondack Park Agency.
- Jan. 1, 2028 - The default size threshold of regulated wetlands will decrease from 12.4 acres to 7.4 acres. Wetlands of any acreage that meet one of the criteria listed above for "unusual importance" will continue to be regulated.
In addition, DEC will extend adjacent areas for certain wetlands. Most wetlands will continue to have a 100-foot regulated adjacent area. However, the adjacent area for nutrient-poor wetland communities will be extended to 300 feet, and for productive vernal pools, it will be extended up to 800 feet.
Two or more areas identified by DEC as freshwater wetlands will be classified and regulated as a single wetland if they are hydrologically connected, either on the surface or sub-surface, and no more than 50 meters (approximately 164 feet) apart.
Jurisdictional Determinations
Projects proposed for areas that may contain wetland characteristics will require jurisdictional determination (JD) review to determine whether the areas potentially impact DEC jurisdiction. Requests must be submitted to DEC’s Central Office, after which DEC will have up to 90 days from receipt of the request to provide a determination in writing, unless additional information or a site visit is required. If DEC fails to provide a definite answer in writing, or notification of a time extension of the 90-day period due to weather or ground conditions, the requestor may notify DEC of such failure; if DEC fails to provide a definite answer within 10 business days of receipt of such notice, the JD is deemed waived and the waiver will serve as a complete defense to the enforcement of the Act at the subject parcel for 5 years. A JD will remain valid for 5 years and may be appealed.
Transition and Grandfathering Provisions
DEC’s new regulations are certain to impact ongoing and upcoming projects, but there are “grandfathering” provisions for certain projects caught in the middle of this regulatory change.
For projects that did not require a freshwater-wetlands permit before Jan. 1, 2025, the new regulations do not apply until either Jan. 1, 2027 (for projects designated as “minor” under DEC’s Uniform Procedures Act regulations) or July 1, 2028 (for projects designated as “major” under the same regulations) if the project already achieved one of the following:
- The lead agency for purposes of the State Environmental Quality Review Act (SEQR) accepted a final environmental impact statement for the project.
- The project received a negative declaration under SEQR; or
- The project received site plan approval from a local government.
In addition, for any projects where the property owner or applicant received, before Jan. 1, 2025, either a freshwater-wetlands permit or a notice of complete application from DEC, the project may proceed until the expiration of the permit.
Federal Wetlands Jurisdiction
DEC’s regulations are specific to state-jurisdictional wetlands. The United States Army Corps of Engineers (USACE) also regulates wetlands under the federal Clean Water Act, and certain projects will still be required to undergo separate coordination (and possibly permitting) through USACE. Further, the new DEC regulations do not apply to wetlands within the Adirondack Park. Coordination and permitting for projects impacting wetlands will continue to be coordinated and permitted through the Adirondack Park Agency under that agency’s jurisdiction.
In addition to the finalized 2025 regulations, DEC has published for public comment a statewide draft general permit (GP-0-25-003) for various activities in State-regulated freshwater wetlands (the “Permit”).
The Permit can be found on DEC’s Freshwater Wetlands General Permit website.
This Permit is proposed to be issued for a five-year term and would allow for certain authorized activities in state-regulated freshwater wetlands and adjacent areas, as well as other protected waterbodies and navigable waters, without the need for issuance of an individual freshwater wetlands permit.
As proposed, the Permit would cover the following activities:
- Repair, reconstruction, and/or replacement of existing functional structures and facilities in a freshwater wetland or freshwater wetland adjacent area. This would exclude drainage ditches and septic systems in freshwater wetlands;
- Repair, reconstruction, replacement and/or removal of septic systems in wetland adjacent areas. Under this activity, systems may be upgraded, but design capacity must not be changed;
- Construction or modification of various residential, commercial, industrial or public structures resulting in a permanent and/or temporary disturbance totaling no more than 1/10-acre to freshwater wetlands and freshwater wetland adjacent areas;
- Temporary access roads and/or laydown areas in wetland adjacent areas with limitations on clearing woody vegetation;
- Selective vegetation cutting, hazard tree removal and/or removal of dead ash trees;
- Cutting of trees or other vegetation necessary to complete any other authorized activity in the permit within the wetland adjacent area;
- Drilling test wills for sampling (Note: Test wells for mineral exploration are not covered under this general permit);
- Routine beach replenishment, regrading and/or cleaning that does not expand the beach’s footprint; and
- Removal of debris and existing structure for the purposes of wetland restoration or where necessary to complete authorized activity in the permit in freshwater wetland or freshwater wetland adjacent areas.
However, there are some geographical areas in which the Permit would not be applicable. These include within Sovereign Indian Nation territories within the state, areas under the Adirondack Park Agency’s jurisdiction, designated Coastal Erosion Hazard Areas and sites adjacent to solid waste facilities. Further, if the proposed activity is subject to jurisdiction under DEC’s regulations on threatened or endangered species (6 NYCRR Part 182) or is at a site undergoing environmental remediation (6 NYCRR Part 375), this Permit would not be applicable.
Public comments will be accepted through Jan. 27, 2025, and can be submitted via email to DEPPermitting@dec.ny.gov or via mail to NYSDEC Division of Environmental Permits, Attn: Kristen Cady-Poulin, 4th Floor, NYSDEC 625 Broadway, Albany NY 12233-1750.
Planning for Project Approvals
In light of the recent changes to DEC’s freshwater wetlands regulatory program, it is critical that project applicants gain the benefit of an integrated team of attorneys and technical professionals who are experienced in navigating DEC’s freshwater wetlands regulatory program. Such counsel is necessary in connection with informed site selection for new projects, the design of expansion projects at existing facilities and the integration of the permitting process as part of an overall schedule for project financing, construction and other development.
