The New York State Department of Environmental Conservation (NYSDEC) recently issued an Advanced Notice of Proposed Rule Making (ANPR) seeking written input on the development of updated Freshwater Mapping and Classification regulations.
Consistent with initiatives established within New York’s 2022-2023 budget to address wetland conservation, the New York State Legislature enacted amendments to the Freshwater Wetlands Act (FWA) in April 2022. These amendments made three changes to the Act which are highlighted in the ANPR.
First, pursuant to the FWA, after Jan. 1, 2025, NYSDEC will rely primarily on aerial imagery and available remote data to determine jurisdiction over freshwater wetlands as opposed to relying on existing maps depicting these wetlands. Secondly, beginning on Jan. 1, 2025, new criteria will be established to identify smaller wetlands of “unusual importance” to be regulated by NYSDEC. And lastly, starting in 2028, the default threshold for regulated wetlands will decrease from 12.4 acres to 7.4 acres.
As a result of these changes to the FWA, the corresponding Freshwater Mapping and Classification regulations need to be amended. The ANPR is organized into sections corresponding to the specific areas where NYSDEC is seeking input. NYSDEC initially identifies several factors for consideration to determine which wetlands should constitute wetlands of “unusual importance.” These factors include propensity for flooding, preservation of wildlife and plant communities and considerations of local and regional significance.
To determine the potential for significant flooding, NYSDEC suggests establishing the use of a 12-digit Hydrologic Unit Code (HUC) to identify wetlands meeting three criteria: (1) It has 2% or more impervious surface based on recent land cover data; (2) less than 5% of its surface area is comprised of floodwater storage zones in the form of lakes, ponds, reservoirs or wetlands, based on recent land cover data; and (3) it is located within 4 kilometers (2.48 miles) of an Urban Area, as defined and identified by the United States Census Bureau.
NYSDEC is also considering establishing criteria for freshwater wetlands containing a habitat for the essential behavior of an endangered or threatened species, a species of special concern, or a species of greatest conservation need identified in New York’s Wildlife Action Plan. NYSDEC has also proposed regional criteria to identify vernal pools based upon the presence of certain amphibian species within each region.
To designate wetlands of local or regional significance, NYSDEC is considering using the location of a wetland either within a Critical Environmental area or partially within the Adirondack Park as criteria. Further, NYSDEC is proposing new criteria to identify Class I Wetlands.
If a wetland has any of the following characteristics, it would qualify as a Class I Wetland under NYSDEC’s proposal: (1) the wetland area provides habitat for an essential behavior of an endangered or threatened animal species, or it contains an endangered or threatened plant species, or it contains a wetland plant community identified as critically imperiled; (2) it falls within, or is contiguous to, a designated Significant Coastal Fish & Wildlife Habitat area; (3) it is a tidally influenced wetland not regulated by NYSDEC; (4) it is contiguous to a tidally influenced wetland that is regulated by NYSDEC; (5) it is nutrient poor; (6) it is located in an area designated as a floodway; and/or (7) it is continuous to certain fresh surface waters.
Additionally, NYSDEC is considering extending the adjacent area of “Nutrient Poor Wetlands” to 300 feet and lists several types of wetland plant communities within the proposed definition of Nutrient Poor Wetlands.
Proposed Procedures for Jurisdictional Determinations of Wetlands
The ANPR also outlines the proposed procedure for the NYSDEC to provide jurisdictional determinations for freshwater wetlands and for recipients of a positive jurisdictional determination to seek review of the determination. NYSDEC’s proposed procedures allow 90 days for NYSDEC to make a jurisdictional determination, with an allowance for extensions, if needed, due to weather or ground conditions. The ANPR also provides that a negative jurisdictional determination is valid for five years.
With respect to a property owner’s receipt of a positive determination after Jan. 1, 2025, the proposed appeal process requires the property owner to have an initial consultation with NYSDEC and provide a verified delineation or request a delineation from NYSDEC, of the wetlands identified in the jurisdictional determination. Within 120 days of the initial consultation, the property owner could then appeal by submitting an appeal application available on NYSDEC’s website. NYSDEC would then have 60 days to issue a decision, with the ability to extend the deadline by 30 days if a visit to the property is necessary.
NYSDEC is receiving written comments on the ANPR until the close of business February 17, 2024. Comments may be submitted by email to WetlandRegulatoryComments@dec.ny.gov (subject: “ANPR Freshwater Wetlands Protection”), or by mail sent to Bureau of Ecosystem Health, Freshwater Wetlands Unit, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4756.
Our Environmental Practice Group is closely watching this issue. If you have questions about this or related matters, please contact attorney Frank C. Pavia at 585-419-8709 and email@example.com; attorney Amelia McLean-Robertson at (315) 214-2028 and firstname.lastname@example.org; attorney Gene J. Kelly at (518) 701-2740 and email@example.com, or the Harris Beach attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
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