Effective January 1, 2025, the New York State Department of Environmental Conservation (“NYSDEC”) implemented changes to its freshwater wetlands regulations expanding its regulatory jurisdiction and establishing new procedural steps for obtaining State wetland jurisdictional determinations.  These regulatory amendments implemented prior statutory modifications that were enacted pursuant to the 2022 New York Freshwater Wetlands Act.  NYSDEC estimates that the new regulations will expand its jurisdiction to cover an additional one million acres of freshwater wetland within the State.

The new regulations amended 6 NYCRR Part 664 to expand the programmatic jurisdiction of NYSDEC’s wetlands permitting scheme to apply to newly defined “Wetlands of Unusual Importance.” Under the amendment, wetlands of unusual importance will fall under state wetlands jurisdiction regardless of size if they meet one of the following eleven criteria:

• Location in a USGS Hydrologic Unit Code that meets criteria for being at risk of significant flooding
• Location in a census-defined Urban Area
• Contains Rare Plant species identified by NYSDEC
• Contains Rare Animal habitat as documented by NYSDEC
• Class I wetland as classified by NYSDEC
• Previously mapped as a wetland of unusual local importance
• Vernal pools as determined by presence of sufficient amphibian eggs
• Location in Floodways designated in FEMA mapping
• Previously mapped wetlands
• Local or regionally significant wetlands located in Critical Environmental Areas or within the Adirondack Park
• Otherwise deemed important to New York State’s Water Quality

The amendments allow NYSDEC to extend the regulatory Adjacent Area surrounding nutrient poor wetlands and productive vernal pools beyond the generally applicable 100-foot buffer.  Likewise, effective January 1, 2028, the default size of a state regulated wetland will be reduced from the current 12.4 acres (5 hectares) to 7.4 acres (3 hectares).

In addition to expanding the programmatic definition of protected wetlands, the new regulations supplant prior map-based jurisdictional determinations with a parcel-specific individualized review process.  While previously mapped freshwater wetlands continue to fall within NYSDEC jurisdiction, a newly established procedure expands NYSDEC’s potential jurisdiction based upon ad hoc site-specific regulatory determinations.  Under the new scheme, a property owner must request a parcel jurisdictional determination from NYSDEC to determine the regulatory status of their property.  This represents a major change from having pre-determined jurisdictional reference maps which could inform property owners, developers and decision-making agencies.

Once a parcel jurisdictional determination request is made, NYSDEC must respond with a definite answer within 90 days of receipt of the request.  This deadline is subject to time extensions for weather and ground condition constraints and is subject to a request for an additional 90-day extension.  If NYSDEC fails to render a timely determination, subject to an application by the requester on notice to the Department, its wetlands jurisdiction may be waived for a period of five years.  Likewise, a negative parcel jurisdictional determination is effective for five years.  Should a request return a positive jurisdictional determination, a property owner may then request a wetland delineation and/or project-specific jurisdictional determination.

The amended regulations do provide extended compliance time frames for certain projects pending during the regulatory transition.  Freshwater wetlands permit applicants who, prior to January 1, 2025, were issued a permit or received notification of a complete permit application will proceed under the prior wetland jurisdictional determination for the length of the issued permit.  Likewise, where, prior to January 1, 2025, a project has:

• received written site plan approval from a local government entity;
• received a SEQR negative declaration; or
• become subject to a Final Environmental Impact Statement, accepted by the SEQR lead agency,

the new regulatory scheme will not become effective until January 1, 2027 or July 1, 2028, respectively, depending on whether the project is classified as a minor or major project under 6 NYCRR 621.4.

These new regulations create significant added risks to property owners in attempting any preliminary assessment of potential regulatory wetlands on their property.  Moreover, the amendments create significant confusion for municipalities and government agencies in ensuring compliance with SEQRA requirements.  Accordingly, property owners should expect to navigate extended approval timelines and expanded permit jurisdiction as they plan for the use and development of their property.

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