On February 5, 2025, the New York State Department of Environmental Conservation proposed to issue five new statewide general permits and to modify three existing general permits previously issued under the Freshwater Wetlands Act.

The five newly proposed general permits include:

1. Community-Scale Solar Energy Installations (GP-0-25-004)
2. Electric Utility Right of Way (ROW) Maintenance and Repair (GP-0-25-005)
3. Housing Development (GP-0-25-006)
4. Lakes and Shorelines (GP-0-25-007)
5. Natural Gas Utility Right of Way Maintenance and Repair (GP-0-25-009)

The three existing general permits proposed to be modified include:

1. Management of Invasive Species (GP-0-25-008)
2. Temporary Bridges/Arch Culverts for Logging Activities (GP-0-23-004)
3. Temporary Bridges/Culverts for Logging Activities (GP-0-23-005)

These eight general permits supplement the previously proposed General Permit (GP-0-25-003) for “typical projects” in NYSDEC-regulated freshwater wetlands, as discussed in a prior SPR blog post on the final revisions to NYSDEC’s freshwater wetlands regulations.

This blog post provides highlights on two of the most important of the newly proposed general permits, those for Housing Development and Community-Scale Solar Energy Installations.

Housing Development General Permit (GP-0-25-006)

If adopted as proposed, the new Housing Development General Permit would authorize the construction of new residential developments under a common plan of development (including detached single-family housing, multiple-family dwellings, and apartment buildings) that impact freshwater wetlands, freshwater wetlands adjacent areas, and protected streams, subject to the general permit conditions.

However, the proposed Housing Development General Permit would not authorize the construction of new residential developments within, among other places, “Class I” freshwater wetlands (i.e., those freshwater wetlands determined by NYSDEC to be among the most valuable in the state and therefore subject to the most stringent regulatory requirements), designated Coastal Erosion Hazard Areas, the jurisdiction of the Adirondack Park Agency, and Sovereign Indian Nation territories. The proposed general permit is also limited to wetland adjacent areas – it would not authorize the construction of residential dwelling units directly within freshwater wetlands or the 100-year flood plain.

Notably, the proposed general permit includes an “Unavoidable Impact and Mitigation Worksheet” tool, which an applicant can use to calculate the unavoidable freshwater wetlands impact limit and wetland mitigation requirements for a new housing development project. To be eligible for coverage under this general permit, a new housing development project must not exceed its unavoidable impact limit. The unavoidable impact limit captures both the temporary and permanent wetlands impacts associated with the housing development, including but not limited to the construction of residential units, parking areas, roadways and sidewalks, accessory structures, utility infrastructure, and stormwater features. Temporary and permanent impacts associated with compensatory wetland mitigation activities are not included in this unavoidable impact limit calculation.

Wetland mitigation plans must be prepared for residential development projects that require compensatory mitigation. The “Unavoidable Impact and Mitigation Worksheet” specifies the required compensatory mitigation ratios for permanent impacts to freshwater wetlands based on the type of impacted wetland: impacts to forested wetlands and emergent/flood wetlands must be offset at a 3:1 mitigation ratio, while scrub/shrub and other non-flooded wetlands impacts must be offset at a 2:1 ratio.

Compensatory wetland mitigation areas must be located on the development project site or within its immediate vicinity, and a deed restriction must be recorded on title to the mitigation areas to prohibit future construction, clearing, or other regulated activities thereon.

The Housing Development General Permit would also authorize certain repair and maintenance activities for features such as utility lines, stormwater infrastructure, water wells, and septic systems that service existing housing developments. It would also authorize the drilling of test wells and geotechnical borings in freshwater wetlands and adjacent areas.

To obtain coverage under the proposed Housing Development General Permit, an applicant must submit a Joint Application Form to the appropriate NYSDEC Regional Permit Administrator demonstrating that its proposed project would first avoid and then minimize any potential avoidable wetlands impacts. If NYSDEC determined that the proposed activities met the applicable regulatory standards for permit issuance, then the project would receive coverage under the general permit. The applicant may not commence construction until it has received coverage under a general permit and submitted a Notice of Intent to Commence Work to NYSDEC.

Community-Scale Solar Energy Installations (GP-0-25-004)

Once formally adopted by NYSDEC, the newly proposed general permit for Community-Scale Solar Energy Installations would authorize certain construction-related activities within NYSDEC-regulated freshwater wetlands, adjacent areas, and/or protected streams, subject to the general permit conditions. Large-scale solar energy projects that are subject to the regulatory jurisdiction of the Public Service Commission or the Office of Renewable Energy Siting would not be authorized by this proposed general permit.

The proposed Community-Scale Solar Energy Installations General Permit would authorize:

• Construction of temporary and permanent access roads in freshwater wetlands and adjacent areas, provided that permanent access roads are less than 20 feet in width (excluding shoulders) and result in no more than 0.25-acre of fill; temporary access roads must avoid adjacent areas to the maximum extent practicable
• Construction of power interconnections and collection lines, provided that such utility lines located within freshwater wetlands are located in or immediately adjacent to a permanent access road (although lines may run through adjacent areas without limitations)
• Construction of solar energy infrastructure on existing structures (e.g., paved areas, parking lots and garages, buildings) located in freshwater wetland adjacent areas
• Vegetation clearing and ground disturbance (e.g., clearing, grubbing, grading, landscaping, installation of solar panels) in adjacent areas and areas in active agricultural use (i.e., used for agricultural production in three of the last five years), subject to certain additional setback/disturbance requirements
• Freshwater wetland mitigation and enhancement activities to compensate for the unavoidable loss of freshwater wetlands and adjacent areas, at the specific mitigation ratios set forth in the “Freshwater Wetland Mitigation and Enhancement Table” attachment to the proposed general permit

The mechanics of obtaining coverage under the proposed Community-Scale Solar Energy Installations General Permit would be the same as those described above for the proposed Housing Development General Permit.

NYSDEC will accept written public comments on all eight of the recently proposed freshwater wetlands general permits until March 14, 2025, which presents a significant opportunity for the regulated community and other stakeholders to help shape environmental policies affecting development projects across New York.