Major Changes to the Future of Freshwater Wetlands Regulation in New York

Many projects, large and small, can run into freshwater wetlands permitting as part of the land use approval process. Wetlands also give rise to enforcement and compliance concerns. This is not surprising, considering that there are approximately over 20,000 acres of freshwater wetlands on Long Island.

Wetlands are identified by vegetation since wet soils support specific types of trees, shrubs, and emergent plants and are recognized as critical resources that protect water quality, mitigate flooding, and provide wildlife habitat. Since the mid-1970s, the Department of Environmental Conservation has regulated freshwater wetlands that are at least 12.4 acres in size, or if of unusual local importance, smaller sizes, and the 100 adjacent area, placing restrictions, prohibitions, and permitting requirements on the use of these areas. Wetlands mapping was, historically, a key to these rules. New York is about to change all of this.

In 2022, the State Legislature amended the Freshwater Wetlands Act, significantly expanding the DEC jurisdiction. On January 1, 2025, wetlands jurisdiction will no longer be limited to DEC maps – any wetlands that meet the legal definition will be regulated and may be subject to permitting requirements. In addition, small wetlands of unusual importance will be regulated if they meet new criteria. Finally, on January 1, 2028, the 12.4-acre regulated wetland requirement will be reduced to 7.4 acres.

On February 19, 2024, the public comment period will end for the advanced proposed rulemaking for the new updated wetlands regulations to implement the new law.

Notable regulatory changes for unusual importance designation include consideration of threatened and endangered species and the presence of amphibians, and will, in limited situations such as “nutrient poor wetlands,” increase adjacent area buffers to 300 feet.

The removal of the wetland mapping requirement and the new rules will likely result in challenges to DEC wetlands permitting. The proposed rulemaking includes new procedural timeframes for jurisdictional determinations and related appeals (90-day windows).

We anticipate many clients will have questions and concerns about the fair implementation of these significantly more expansive new rules and processes in the permitting and regulatory compliance contexts.