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January 9, 2024

NYSDEC Seeks Input on Impending Changes to State Wetland Rules

In April 2022, the New York State legislature amended the Freshwater Wetlands Act to significantly expand the New York State Department of Environmental Conservation’s (NYSDEC) wetlands authority. The expansion of that authority stems from three changes to the act:

  1. NYSDEC’s jurisdiction will no longer be limited to mapped freshwater wetlands beginning on January 1, 2025;
  2. Smaller wetlands of “unusual importance” will be regulated beginning on January 1, 2025, if they meet one or more of 11 newly established statutory criteria; and
  3. The default threshold for regulated wetlands will decrease from 12.4 acres to 7.4 acres in 2028.

On January 3, 2024, the NYSDEC issued an Advanced Notice of Proposed Rule Making (ANPRM) describing the agency’s proposed approach for implementing the act and soliciting input for future proposed rulemaking(s). In the ANPRM, the NYSDEC outlined the criteria it is considering for designating regulated wetlands of “unusual importance”: 

  • Presence of essential habitat for endangered and threatened species, species of special concern, or species of greatest conservation need for designating regulated wetlands based on rare animals
  • Regional criteria based on the presence of amphibians for designating regulated vernal pools
  • Location in a Critical Environmental Area or within the Adirondack Park for designating wetlands of local or regional significance
  • Numerous factors based on location and species for designating regulated Class I wetlands
  • Use of the 12 digit Hydrologic Unit Code for designating regulated wetlands based on significant flooding

The NYSDEC is proposing to expand the regulated adjacent area for “nutrient poor wetlands” to 300 feet. 

The ANPRM also describes the NYSDEC’s proposed procedure for requesting and challenging a jurisdictional determination (JD) by the agency regarding the presence of regulated wetlands. This process will be critical for projects in proximity to potentially regulated wetlands when state wetland maps are no longer determinative. Based on the NYSDEC’s proposed approach, a response to a JD request could take 90 days or more, and an agency determination of a challenged JD could take up to an additional 90 days after initial consultation with the NYSDEC, completion of a verified delineation, and submission of an appeal application.

Comments on the ANPRM can be submitted until the close of business on February 19, 2024, via email to WetlandRegulatoryComments@dec.ny.gov (subject: “ANPR Freshwater Wetlands Protection”) or sent to the Bureau of Ecosystem Health, Freshwater Wetlands Unit, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4756.

If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Tom Paul, partner, at tpaul@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team. 
 

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