A New Year brings New DEC Freshwater Regulations
(Stay tuned…more substantive analysis to follow)
Freshwater wetlands in New York are regulated by both the Department of Environmental Conservation and the Army Corps of Engineers. New York’s Freshwater Wetlands Act (FWA) was adopted to protect wetlands that were 12.4 acres in size and smaller wetlands that were considered to be of unusual local importance.
Since the FWA was adopted in 1975, the regulatory jurisdiction of DEC has been determined by the official DEC Wetlands Maps: if a wetland was shown on the map, that wetland area and a hundred-foot-wide “adjacent area” around it were regulated. That regulated area could only be expanded by amending the Wetlands Map.
In 2022, the Legislature amended the Act to remove the requirement that a wetland be shown on the wetlands map, effective January 1, 2025. DEC estimated that the amendment could extend its regulatory jurisdiction to 1,000,000 acres of wetlands that had not been shown on the DEC Wetland Maps, including smaller wetlands located in or adjacent to Census tracts defined by the Census as “Urban Areas.”.
Since then, DEC has been working to amend the Freshwater Wetlands regulations (6 NYCRR Part 664) to reflect those changes.
Early in 2024, it took the unusual step of publishing its preliminary draft regulations for public comment and has held a number of hearings and webinars. In August, it published proposed regulations for hearing and comment. Advocates and stakeholders in the regulated communities submitted extensive comments, noting the impact of the change on activities that may have been under environmental review for years.
DEC published its Notice of Adoption of the new Part 664 regulations in today’s State Register.
While the Notice states that “regulated parties must comply immediately beginning on the rule’s proposed effective date of January 1, 2025”, it also announces DEC’s transition policy “to allow fair, expeditious and thorough administrative review of freshwater wetlands permits, consistent with ECL § 70-0103, Uniform Procedures, and to balance environmental and economic interests, consistent with ECL § 24-0103, this rule making provides transition periods for projects that have achieved certain development thresholds prior to January 1, 2025, so that those projects may continue without a new freshwater wetlands jurisdictional determination for a specified time period between 3.5 and 2 years”, and expands the activities eligible for the transition period.
DEC’s regulatory page offers lots to read, including the text of the new regulations, its response to public comment and other Rulemaking Documents, and (hopefully soon) informational maps developed by DEC and a webinar to explain it all on 1/15/25.
6 NYCRR Part 664, Freshwater Wetlands Jurisdiction and Classification
Rulemaking Documents
Informational Webinar
DEC will host a webinar on Jan. 15, 2025, at 2 p.m. to provide information and answer questions about the updated Freshwater Wetlands program regulations. Registration for the webinar is available here. A recording of the webinar will be posted on DEC’s website when available. Additional public engagement sessions—including webinars and community workshops—are planned for 2025. The first one being January 15, 2-3pm. Information for the webinar is below:
- Webinar topic: Navigating Change: Insights into the Finalized NYS Freshwater Wetlands Regulations
- Date and time: Wednesday, January 15, 2025 2:00 PM | (UTC-05:00) Eastern Time
- Webinar number: 2827 000 2244
- Webinar password: welcome1 (93526631 when dialing from a phone or video system)
- Join by phone: +1-929-251-9612 United States Toll (New York City)
- +1-415-527-5035 United States Toll
- Access code: 2827 000 2244
The final regulations and additional resources, including maps and information, are available on DEC’s website.
https://dec.ny.gov/nature/waterbodies/wetlands/freshwater-wetlands-program
Note: That link does not appear to have the Cornell/DEC information maps (yet).
This is not intended to be considered legal advice. You should contact an attorney to discuss your specific situation.
George Lithco is of counsel with the firm and practices land use and municipal law. He can be reached by phone at 845-764-9656 and by email.
Client Alert – A New Year Brings New DEC Freshwater Regulations
A New Year brings New DEC Freshwater Regulations
Freshwater wetlands in New York are regulated by both the Department of Environmental Conservation and the Army Corps of Engineers. New York’s Freshwater Wetlands Act (FWA) was adopted to protect wetlands that were 12.4 acres in size and smaller wetlands that were considered to be of unusual local importance.
Since the FWA was adopted in 1975, the regulatory jurisdiction of DEC has been determined by the official DEC Wetlands Maps: if a wetland was shown on the map, that wetland area and a hundred-foot-wide “adjacent area” around it were regulated. That regulated area could only be expanded by amending the Wetlands Map.
In 2022, the Legislature amended the Act to remove the requirement that a wetland be shown on the wetlands map, effective January 1, 2025. DEC estimated that the amendment could extend its regulatory jurisdiction to 1,000,000 acres of wetlands that had not been shown on the DEC Wetland Maps, including smaller wetlands located in or adjacent to Census tracts defined by the Census as “Urban Areas.”.
Since then, DEC has been working to amend the Freshwater Wetlands regulations (6 NYCRR Part 664) to reflect those changes.
Early in 2024, it took the unusual step of publishing its preliminary draft regulations for public comment and has held a number of hearings and webinars. In August, it published proposed regulations for hearing and comment. Advocates and stakeholders in the regulated communities submitted extensive comments, noting the impact of the change on activities that may have been under environmental review for years.
DEC published its Notice of Adoption of the new Part 664 regulations in today’s State Register.
While the Notice states that “regulated parties must comply immediately beginning on the rule’s proposed effective date of January 1, 2025”, it also announces DEC’s transition policy “to allow fair, expeditious and thorough administrative review of freshwater wetlands permits, consistent with ECL § 70-0103, Uniform Procedures, and to balance environmental and economic interests, consistent with ECL § 24-0103, this rule making provides transition periods for projects that have achieved certain development thresholds prior to January 1, 2025, so that those projects may continue without a new freshwater wetlands jurisdictional determination for a specified time period between 3.5 and 2 years”, and expands the activities eligible for the transition period.
DEC’s regulatory page offers lots to read, including the text of the new regulations, its response to public comment and other Rulemaking Documents, and (hopefully soon) informational maps developed by DEC and a webinar to explain it all on 1/15/25.
6 NYCRR Part 664, Freshwater Wetlands Jurisdiction and Classification
Rulemaking Documents
Informational Webinar
DEC will host a webinar on Jan. 15, 2025, at 2 p.m. to provide information and answer questions about the updated Freshwater Wetlands program regulations. Registration for the webinar is available here. A recording of the webinar will be posted on DEC’s website when available. Additional public engagement sessions—including webinars and community workshops—are planned for 2025. The first one being January 15, 2-3pm. Information for the webinar is below:
The final regulations and additional resources, including maps and information, are available on DEC’s website.
https://dec.ny.gov/nature/waterbodies/wetlands/freshwater-wetlands-program
Note: That link does not appear to have the Cornell/DEC information maps (yet).
This is not intended to be considered legal advice. You should contact an attorney to discuss your specific situation.