By Sophie Coassin and Daniel M. Richmond
New York State has amended the Freshwater Wetlands Act to significantly expand regulation and protection of wetlands, with key changes effective in 2025 and 2028. These amendments to Article 24 of the Environmental Conservation Law (ECL) were made in response to the deregulation of federal wetland protections based on the Sackett v. EPA decision.
Major Statutory Changes Taking Effect in 2025
Beginning on January 1, 2025, Department of Environmental Conservation (DEC) mapping will no longer limit DEC regulation to only those wetlands depicted on maps. This means that if a wetland meets the statute’s definition of a freshwater wetland, there will be a rebuttable presumption of regulation even if it is not mapped.
‘Freshwater wetlands’ are defined as lands and waters of the state that are not tidal wetlands and have an area of at least 12.4 acres or, if less than the default threshold in size, are of unusual importance. (Starting January 1, 2028, that size threshold will be 7.4 acres – meaning significantly more wetlands will be covered.) The presumption of regulation may be rebutted by presenting information to the department that the area does not meet the definition of a freshwater wetland by size threshold or unusual importance.
The location of regulated wetlands will be determined by the ongoing aerial photography, soil surveys, or field verifications conducted by the department. The department may also accept information from other sources like the federal, state, or local government, educational institutions, environmental organizations, and private agencies. Therefore, this type of information from one of the above sources may be highly valuable to rebut the presumption of regulation. More information on this process will be available starting in 2025, when the department will post educational materials to their website to inform landowners and local governments of the process for determining how to identify freshwater wetlands.
Smaller wetlands of “unusual importance” will be regulated if they meet one or more of 11 newly established statutory criteria. The criteria are listed as:
- Significant Flooding
- Urban Areas
- Rare Plants
- Rare Animals
- Class I
- Unusual Local Importance
- Vernal Pools
- Floodways
- Previously Mapped Wetlands
- Local or Regional Significance
- Important for Protection of NYS Water Quality
A rebuttal of presumption would have to be able to provide information to the department showing that the wetland does not meet any of these criteria.
Proposed Regulations
The draft regulations propose that any person can request a judicial determination as to whether something is a freshwater wetland or regulated adjacent area. If they receive a positive declaration, they can request the department for a delineation and submit an application of the proposed activity to determine whether a permit is needed.
Positive declarations may be appealed. The acceptable basis for an appeal is technical information indicating one or more of the following:
- An omission of material fact
- Incorrect application of the current regulatory criteria
- Incorrect application of guidance for identifying wetlands and delineating wetland boundaries
Maintaining a meticulous record from the beginning of the process, whether that be a rebuttal of presumption or a permit application, is essential for an appeal.
The draft regulations also offer some protection for property owners who have commenced or plan to commence a project that did not require a freshwater wetland permit prior to January 1, 2025. The new regulations will not apply until July 1, 2028, for “major projects” and January 1, 2027, for “minor projects” if the property owner has one of the following for the project:
- A Final Environmental Impact Statement for the project which has been accepted by a lead agency,
- Received a negative declaration for a Type I Action, or
- Received written site plan approval.
Is Your Property Subject to Regulation?
The statutory amendments and proposed regulations will drastically increase the regulation of freshwater wetlands in the State of New York. Zarin & Steinmetz LLP often deals with wetlands regulation, especially throughout the State Environmental Quality Review (SEQR) process. These changes to the Freshwater Wetlands Acts are new and significant, but we are staying up to date on new developments to continue being a leader in the field. If you need help determining if a freshwater wetland on your property may now be subject to regulation (including a delineation and whether a permit application is needed), filing a permit application, or appealing a positive declaration, reach out to us and we can help.
