On January 3, 2024, NYSDEC announced an Advanced Notice of Proposed Rule Making  for potential revisions to its freshwater wetlands regulations, accompanied by a complete pre-proposal draft of revised 6 NYCRR Part 664 regulations. NYSDEC is accepting public comments on its draft regulations through February 20, 2024.

Background: 2022 Statutory Changes to the Freshwater Wetlands Act

On April 9, 2022, the New York State Legislature made major changes to Article 24 of the Environmental Conservation Law (ECL), the State’s Freshwater Wetlands Act (FWA). The statutory changes significantly expanded the jurisdiction of the New York State Department of Environmental Conservation (NYSDEC) to include potentially thousands of smaller freshwater wetlands and wetlands of “unusual importance” and extended new state protections to an estimated over one million additional acres of freshwater wetlands that NYSDEC believes meet the statutory criteria for protection, but which were not initially inventoried in NYSDEC’s official maps, promulgated mainly during the 1980s.

The State legislature made three major changes to the FWA in the 2022-23 NYS budget legislation:

1. Starting January 1, 2025 –
   NYSDEC’s freshwater wetlands regulatory authority will no longer be limited to the wetlands depicted on the official, decades-old freshwater wetland inventory maps, which mapped wetlands based on hand-drawn lines. The existing NYSDEC maps will serve only informational purposes starting in 2025, and NYSDEC will rely primarily on aerial imagery and remote sensing data to determine whether a parcel contains State-regulated freshwater wetlands. As discussed below, individuals will now need to apply to NYSDEC for a formal jurisdictional determination to know whether they have a State-regulated freshwater wetland on their property.
2. Starting January 1, 2028 –
   The default size threshold for regulated wetlands will decrease from  12.4 acres to 7.4 acres.
3. Starting January 1, 2025 –
   NYSDEC will regulate smaller wetlands of unusual importance if they meet one of eleven newly established criteria listed in ECL § 24-0107(9).

To implement these statutory changes, NYSDEC is now revising the existing freshwater wetland mapping and classification regulations set out at 6 NYCRR Part 664.

Highlights of NYSDEC’s Proposed Freshwater Wetlands Regulations

The Advanced Notice sets out NYSDEC’s anticipated regulations and poses questions to the public; several highlights are discussed below.

Importantly, NYSDEC proposes increasing the freshwater wetlands “adjacent area”—a 100-foot regulated buffer zone around wetlands—to 300 feet for wetlands that contain one or more of about twenty plant communities that NYSDEC classifies as “Nutrient Poor” (e.g., black spruce-tamarack bog, coastal plain Atlantic white cedar swamp) to protect these wetlands from damage from nutrient loading. Definitions and the general range and distribution of these plant communities can be found at the New York Natural Heritage Program (NYNHP) website, but it appears that only a jurisdictional determination from NYSDEC will conclusively answer whether a given parcel contains a regulated “Nutrient Poor” wetland with an expanded 300-foot adjacent area.

As discussed above, the 2022 statutory amendments to the FWA also state that NYSDEC must regulate freshwater wetlands of any size if they have “unusual importance,” as defined by eleven criteria described in ECL § 24-0107(9).  These will include any wetlands that, in NYSDEC’s judgment, have “significant importance to protecting the state’s water quality.”

Under NYSDEC’s proposed “unusual importance” regulations:

• Class I wetlands, the most protected in NYSDEC’s four-part classification scheme, would be defined using new criteria that include providing habitat for an “essential behavior” (e.g., reproduction, feeding, sheltering) of an endangered or threatened animal species. Class I wetlands would also include those that contain certain threatened plant species, and wetlands that fall within or are contiguous to certain fresh surface waters, significant habitat areas, and regulated tidal wetlands.
• NYSDEC would use a detailed new process, developed in consultation with the NYNHP, to identify vernal pools that are productive for amphibian breeding based on the number of salamander and/or wood frog egg masses found within it.
• Watersheds that experience “significant flooding” are deemed unusually important under the amended FWA. NYSDEC proposes to use Hydrologic Unit Codes (HUCs), a hierarchical system created by the U.S. Geological Survey for classifying and organizing information about watersheds and river systems, as the unit of analysis for its “significant flooding” evaluation. 12-digit HUCs, or Subwatersheds, are the smallest unit under this system, with a national average area of about thirty-six square miles according to EPA. Under NYSDEC’s draft regulations, a freshwater wetland would be classified as experiencing significant flooding if it is located in a 12-digit HUC that (i) has two percent or more impervious surface; (ii) has less than five percent of its surface area composed of floodwater storage zones such as lakes, ponds, etc.; and (iii) is located within 2.48 miles of an Urban Area as defined by the U.S. Census Bureau.
• Another criterion for NYSDEC’s unusual importance evaluation includes assessing whether wetlands have “functions and values that are of local or regional significance.” NYSDEC proposes that such wetlands must be located within a Critical Environmental Area (as defined in 6 NYCRR Part 617) with specific reference to wetland protection by a local government, or be at least partially located within the Adirondack Park and under the jurisdiction of the Adirondack Park Agency.
• Wetlands of unusual importance would also include those located within or adjacent to an urban area as defined by the U.S. Census Bureau; that contain a plant species occurring in fewer than thirty-five sites statewide or having fewer than five thousand individuals statewide; and that contain habitat for an essential behavior of an endangered or threatened species or a species of special concern.

The Advanced Notice also sets out NYSDEC’s proposed procedures for conducting jurisdictional determinations and handling appeals of those determinations. Under the new jurisdictional determination procedure, which effectively mirrors the process already finalized in the statute, “any person” may ask NYSDEC for a determination as to whether a given parcel includes freshwater wetlands or adjacent areas subject to State regulation. NYSDEC must answer within 90 days, weather and ground conditions permitting. A negative jurisdictional determination will be a complete defense to enforcement for five years.

Under DEC’s proposed appeal procedure, any owner of property that receives a positive jurisdictional determination may appeal on a limited set of bases: technical information indicating an omission of material fact, incorrect application of the current regulatory criteria, or incorrect application of guidance for identifying wetlands and delineating wetland boundaries. Following an initial consultation with NYSDEC, and once the landowner provides or requests a verified delineation of the wetland, NYSDEC must issue a written decision within 60 days, which is extendable by another 30 days if the Department determines an additional visit to the property is necessary.

Comments may be submitted until close of business on February 20^th via email to WetlandRegulatoryComments@dec.ny.gov, or via letter to NYS DEC – Division of Fish and Wildlife, 625 Broadway, Albany NY 12233-4756. The public will have another opportunity to comment once NYSDEC releases its Notice of Proposed Rule Making, which the Department expects to publish in April 2024.