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NYSDEC Issues Final Revised Freshwater Wetlands Regulations
On December 31, 2024, NYSDEC announced the adoption of final revisions to its freshwater wetlands regulations, 6 NYCRR Part 664. The revised regulations took effect on January 1, 2025. These regulations implement amendments that the New York State Legislature enacted in 2022 to Article 24 of the Environmental Conservation Law (ECL)—the State’s Freshwater Wetlands Act (FWA)—which greatly expanded NYSDEC’s jurisdiction over freshwater wetlands in the state.
Under these changes, NYSDEC estimates that one million acres of previously unregulated freshwater wetlands may now be under NYSDEC’s jurisdiction. These include freshwater wetlands of any size if they are of “Unusual Importance,” which NYSDEC may designate based on any one of eleven expansive factors described below. Among other criteria, the “Unusual Importance” designation now gives NYSDEC jurisdiction over all freshwater wetlands in or adjacent to urban areas, and over some wetlands located within 2.48 miles of urban areas. Given the extensive presence of urban areas across New York State, this expanded jurisdiction has far-reaching implications.
The new regulations also do away with the longstanding NYS Freshwater Wetlands Maps, and property owners will now need to apply to NYSDEC for a jurisdictional determination to ascertain whether their property includes a State-regulated freshwater wetland.
Key Updates to Wetlands Regulations
Jurisdictional Determinations
Property may be subject to NYSDEC’s freshwater wetlands regulatory authority if it includes freshwater wetlands greater than 12.4 acres (or greater than 7.4 acres after December 31, 2027), wetlands of “Unusual Importance” (regardless of size; see below), or Wetland Adjacent Areas. Two or more areas identified by NYSDEC as freshwater wetlands will be classified and regulated as a single wetland if they are no more than 50 meters apart and share a surface or sub-surface hydrological connection.
As of January 1, 2025, the NYS Freshwater Wetlands Maps no longer define the extent of NYSDEC’s regulatory jurisdiction, although “Previously Mapped Freshwater Wetlands” are jurisdictional as wetlands of Unusual Importance. The old maps will continue to be available via the Department’s Environmental Resource Mapper, along with a new “informational” map layer showing potential freshwater wetlands. NYSDEC will now make jurisdictional determinations (remotely in the first instance) using aerial imagery, wetland mapping databases, and wetland delineation data. Property owners must now apply to NYSDEC for a jurisdictional determination to ascertain (a) whether their land contains either State-regulated freshwater wetlands or State-regulated adjacent areas (a “parcel jurisdictional determination”) and/or (b) whether a proposed activity on a parcel subject to NYSDEC freshwater wetlands regulation requires a permit (a “project jurisdictional determination”). Under the revised regulations, NYSDEC must respond to jurisdictional determination requests in 90 days, unless weather or ground conditions prevent adherence to this timeframe. If NYSDEC fails to provide a definite answer within 90 days, the requestor may notify NYSDEC of its failure via certified mail. If NYSDEC does not respond within 10 business days, then freshwater wetland jurisdiction for the parcel will be deemed waived, and such waiver will serve as a complete defense to the enforcement of the Act for five years.
The regulations do not clarify if a property owner can simultaneously apply for parcel and project jurisdictional determinations, or if NYSDEC must first issue a parcel jurisdictional determination before the property owner can apply for a project jurisdictional determination.[1] If NYSDEC requires these applications sequentially, just learning whether an activity requires a NYSDEC freshwater wetlands permit may take up to six months.
In response to public comments, NYSDEC has posted standard operating procedures online to provide transparency regarding the technical details of how the Department will conduct jurisdictional determinations and wetland classification.
Expansion of State-Regulated Adjacent Areas
The revised regulations allow NYSDEC to expand the boundaries of State-regulated freshwater wetlands “adjacent areas” for certain types of wetlands. While the regulated adjacent area constitutes a 100-foot buffer zone around wetlands, NYSDEC may extend this area this area for freshwater wetlands with “nutrient poor” plant communities or vernal pools known by NYSDEC to be productive for amphibian breeding. Such determinations will be made on a case-by-case basis.
Wetlands of Unusual Importance
Pursuant to changes made by the New York State Legislature to Article 24 of the Environmental Conservation Law in 2022, NYSDEC now has regulatory authority over freshwater wetlands of any size if they are of “Unusual Importance.” A freshwater wetland is of “Unusual Importance” if it meets at least one of eleven statutory criteria indicated in ECL § 24-0107(9). These statutory criteria include if the freshwater wetland:
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- (a) is located within an area that has or is expected to experience significant flooding;
- (b) is located within or adjacent to an urban area (as defined by the U.S. Census Bureau);
- (c) contains a rare plant species;
- (d) contains “habitat for an essential behavior” of an animal species that is endangered, threatened, of special concern, or of greatest conservation need;
- (e) is classified by NYSDEC as a Class I wetland;
- (f) was previously classified and mapped by NYSDEC as a wetland of “unusual local importance”;
- (g) is a vernal pool “known to be productive for amphibian breeding”;
- (h) is designated as a floodway by FEMA;
- (i) was previously mapped by NYSDEC as a wetland before January 1, 2025;
- (j) has “wetland functions or values that are of local or regional significance”; or
- (k) is of significant importance to protecting state water quality.
The revised regulations expand upon these eleven “Unusual Importance” statutory categories by further defining the criteria for their application.
Urban Areas
New York is home to a vast number of US Census-designated urban areas within nearly every region of the state, ranging from New York City, Buffalo, Syracuse, the Hudson Valley and even smaller urban centers like Cortland, Montauk, and Glens Falls. Property owners and project developers operating in, adjacent to, or near an urban area are advised to account for freshwater wetlands in their planning, as projects may be subject to additional permitting requirements and potential delays.
As noted above, freshwater wetlands of any size that are located within or adjacent to an urban area are now regulated as wetlands of Unusual Importance. Further, a freshwater wetland of any size located within 2.48 miles of an urban area may be regulated as a wetland of Unusual Importance under the “significant flooding” criterion, if that wetland is also located in a 12-digit Hydraulic Unit Code (a classification system developed by the U.S. Geological Survey) and has (i) two percent or more impervious surface and (ii) less than five percent of its surface area comprised of floodwater storage zones such as lakes, ponds, reservoirs, or wetlands.
Grandfathering Provisions
Under the revised regulations, certain projects are exempt from the new requirements until either January 1, 2027, or July 1, 2028, depending on the type of project. The revised regulations become applicable on January 1, 2027, for “minor” projects (as defined in 6 NYCRR § 621.4) or on July 1, 2028, for “major” projects, provided that such project has received one of the following approvals before January 1, 2025:
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- Acceptance of a Final Environmental Impact Statement by a lead agency pursuant to the NYSDEC SEQRA regulations;
- A negative declaration for a SEQRA Type I or Unlisted action; or
- A written site plan approval from a local government.
The revised regulations also include grandfathering provisions that protect property owners who received, before January 1, 2025, either a freshwater wetlands permit or a notification from NYSDEC that their freshwater wetlands application was complete. These property owners may proceed under the jurisdictional determination made by NYSDEC prior to January 1, 2025, until expiration of their permit.
General Permit Proposal
On the heels of the new freshwater wetlands regulations, NYSDEC has proposed a statewide general permit covering “typical projects” in State-regulated freshwater wetlands, including: repair, replacement, or removal of existing structures; construction or modification of various structures; temporary installation of access roads/laydown areas; vegetation management; drilling test wells; and routine beach management and replenishment. The goal is that this permit will aid in streamlining the permitting process. The draft General Permit (GP-0-25-003) can be found on DEC’s Freshwater Wetlands General Permit website. Public comments on the draft permit will be accepted through January 27, 2025.
In the upcoming months, DEC anticipates proposing additional general permits for urban areas, shallow reedy lakes, and renewable energy.
With contributions by Michael Bogin.
[1] Compare 6 NYCRR § 664.8(c) (“Any landowner who has been issued a positive parcel jurisdictional determination may submit an application to the department requesting a project jurisdictional determination . . . .”) with § 664.8(e) (“The department shall provide a definite answer in writing within 90 days of the receipt of such request as to the jurisdictional status of a parcel, and if requested, a project jurisdictional determination.”).