The New York State Department of Environmental Conservation will have substantially increased jurisdiction over freshwater wetlands beginning on January 1, 2025. This change will impact, in some cases significantly, all projects under construction and future projects. Currently, in New York, freshwater wetlands are determined based on existing mapping from DEC. Generally, wetlands can only be 12.4 acres or larger, although DEC has some authority to determine that other wetlands are jurisdictional, it is used fairly rarely. In 2022, New York passed a law changing this program. Those changes go into effect on January 1, 2025. This change, for now, will keep jurisdictional wetlands at 12.4 acres (they will decrease to 7.4 acres in 2028), however, the maps are only references, and are not binding on whether not an area is or is not jurisdictional. DEC was given the authority to issue jurisdictional determinations, which are required for any property where a wetland is or may be present. Any larger wetland area that today is not mapped could become a DEC-jurisdictional wetland after the law goes into effect.
This becomes more critical because the law also allows DEC to designate “wetlands of unusual importance,” of any size based on a number of factors. Most critically, one factor for DEC to make this determination is if the wetland area “it has significant importance to protecting the state’s water quality.” This is very broad authority for them to determine that a particular wetland area should be subject to DEC jurisdiction and permitting. The statute also lists a number of other factors, including areas with significant past flooding, those near urban areas, that could house endangered species, those near disadvantaged communities or environmental justice areas, those that are “ vernal pools,” and others. See new ECL 24-0107(9). To be such a “wetland of unusual importance” due to its importance to the protection of water quality, the wetland would have to protect against exceedances of water quality standards or guidance per 6 NYCRR Part 702. This could be a broad basis for a wetland of any size to be rendered jurisdictional, however, at least there is some guidance as to what criteria DEC would be using for this category to designate a ”Wetland of Unusual Importance.”
DEC issued proposed regulations to carry out its new responsibilities this summer, which were issued in final form on December 31, 2024. However, the new regulations include two important items to review. The first is the transition period of a couple years for projects at a certain stage, which avoids the need for compliance for a few years before those projects would have to undergo review pursuant to the 2022 law and new regulations. Those milestones are:
- For a project that has an Article 24 freshwater wetland permit, or a notice of complete application for an Article 24 freshwater wetland permit, as of January 1, 2025, no action is required under the new law. The project can use the Article 24 permit issued (or to be issued). Only if it wasn’t built by time that permit expired would further action be required.
- For projects under development, if the project has a Type I or unlisted negative declaration or EIS, and/or a written site plan approval, compliance with the new law is not required until 2027 or 2028. If the wetland disturbance would qualify as a “major” project per DEC’s permitting regulations (this is typically a larger impact (in square feet/acres) or one that is not categorically listed as minor), the project would not have to comply until July 1, 2028. (In that instance it would be presumed that the project has not commenced by then.) For a “minor” wetland disturbance (less disturbance/specified types of impacts), a project would have to have commenced by January 1, 2027. This means that projects with some development completed have a decent window of time to begin construction before consultation with DEC would be required.
- For projects that do not have either a wetland permit or neg dec and/or site plan, compliance would be required. This would include a jurisdictional determination if there are any wetlands that could be jurisdictional, whether they are 12.4 acres or have any characteristics that could qualify it as a wetland of unusual importance. Given the breadth of the factors in the wetlands law, as well as those described in the proposed regulations, it would be expected that delineations could flag many wetlands that are not DEC-jurisdictional today as potentially jurisdictional.
Therefore, any projects that could get a site plan approval or EIS/neg dec (as a Type I or Unlisted action) before January 1, 2025 would get the extra time to complete development and start construction. If projects are not at that stage, or for future new projects, the new regulations will require a jurisdictional determination from DEC for any wetlands that could be 12.4 acres or more (whether the 12.4 acres is all onsite or not), or that could be wetlands of unusual importance.
The final regulations also include a procedure for a delineation. Either the applicant can ask DEC to perform a delineation, or a wetland delineation can be submitted to DEC. To also get confirmation of whether a DEC Article 24 freshwater wetland permit will be required, site plans should be submitted as well. The regulations would give DEC 90 days to make a determination, but weather delays could extend this time. If they do not request an extension or act within 90 days, then the applicant can submit a written notice of the expiration of 90 days. If DEC doesn’t act within 10 business days of the receipt of the notice, then jurisdiction is deemed waived for five years.
If DEC finds jurisdictional wetlands, either a permit must be pursued for any project impact to the wetlands, including at least a 100 foot buffer area, a project redesign would be required to avoid a permit, or the applicant can appeal the jurisdictional determination. It is noted that there are two types of wetlands where a larger buffer could occur. The final regulations allow DEC to set a buffer of larger than 100 feet for “nutrient poor” wetlands or if there is a vernal pool present. There is a procedure to appeal a jurisdictional determination which would take at least a few months. However, the result could be litigated, or may be reversed upon closer review.
All told, this new procedure will add a second layer of wetland regulation similar to ACOE, but with timelines spanning a few months at least to determine whether wetlands are present. We would expect that the influx of a potentially significant number of wetland delineations would create delays, so the 10 day notice provision could be a good way to get through the process in a defined amount of time. The uncertainty of whether a particular wetland will be identified as a wetland of unusual importance would be expected to impact future project development (DEC expects at least a million new acres of wetlands to be protected across New York State). The odds of a permit being required are expected to grow because of this new program, perhaps significantly, over DEC freshwater wetland jurisdiction today. Further, DEC does not have broad general permits like the ACOE’s Nationwide Permits, although they are working on a few general permits for certain categories of activities. It is entirely possible for any development, however, that even if the ACOE says a project can proceed via a NWP (or no permit required letter), DEC could say no, and impose conditions on a permit issued, or for larger wetland areas, not be willing to grant a permit.
https://www.couchwhite.com/wp-content/uploads/2024/12/Final-Part-664-Freshwater-Wetlands.pdf
https://dec.ny.gov/sites/default/files/2024-07/wetlands_et_pt664.pdf