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Since our previous update, the Department of Environmental Conservation (“DEC”) has now enacted its new regulations that implement the State Legislature’s 2022 expansion of freshwater wetlands authority. These changes are anticipated to cover an additional one million acres of freshwater wetlands. The changes will expand regulation of the uses of the wetlands and buffer areas surrounding them.
Wetlands consist of submerged lands and adjacent buffer areas, commonly referred to as marshes or swamps. These areas play an important ecological role in our communities by absorbing flood water, filtering water, and providing habitat for wildlife and aquatic plants. There are an estimated two and a half million acres of freshwater wetlands in New York. There are approximately 25,000 acres of tidal wetlands in the state, which are prevalent around the Long Island Sound, and in numerous other areas.
New Legal Developments Substantially Increase DEC Regulation
The DEC regulatory updates will impact the scope, scale, and timing of certain agency actions. Essentially, the requirements for maps of contiguous areas with wetland characteristics that previously guided regulation will eventually be decreased in size, allowing smaller areas to be covered by new mapping efforts. Notwithstanding these changes, these maps will be far less relevant if the DEC, upon review, concludes that a wetlands area - of any size - meets one of 11 specified “unusual importance” criteria. The “unusual importance” criteria includes: watersheds with significant flooding, urban areas, rare plants, rare animals, unusual local importance, vernal pools, Class 1 wetlands, previously mapped wetlands, regional significance, floodways, and water quality. As a result, requests to the DEC for jurisdictional determinations will change from its earlier more limited scope to a significantly larger number of inquiries for such determinations. The DEC has also proposed the use of more General Permits to address this expanded authority. There are some limited “grandfathering” provisions for projects currently under government review. Additionally, timeframes for agency decision making and review are intended to create some certainty in the new processes. For Long Island, the urban area criteria can result in almost the entire island potentially being subject to DEC wetlands jurisdiction.
Wetlands Challenges
In this evolving regulatory context, we represent clients in matters involving both the freshwater and tidal wetlands programs. Our clients, from homeowners to businesses, commonly seek advice and counsel which often requires working with specialized environmental experts. These issues routinely arise in the context of permits needed for new building and development projects. They also come about in the context of state enforcement efforts. The DEC has brought increased focus to enforcement in these areas. For example, we recently successfully represented a New York City client in navigating and resolving a significant tidal wetlands enforcement matter. Most importantly, we reached an agreement with the DEC that effectively accomplished two goals – protecting our client’s interests and addressing the DEC’s wetlands restoration goals for the site. We anticipate an increase in wetlands enforcement matters.
The DEC’s new freshwater wetlands regulations are currently the subject of two lawsuits challenging the DEC’s adoption and enforcement of these new regulatory provisions. We will continue to monitor these cases as they advance through judicial review.
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