VIEWPOINT: NYSDEC Seeks Feedback on the Part 664 Freshwater Wetland Regs

In January 2024, the New York State Department of Environmental Conservation (DEC) released an Advanced Notice of Proposed Rulemaking (ANPR), which sought written stakeholder input as DEC began to develop regulations to, at least in part, implement the revisions to the Freshwater Wetlands Act passed by the legislature and signed by Gov. Hochul in 2022. On July 10 of this year, DEC released for public comment its Proposed Rulemaking for Potential Revisions to Freshwater Wetland Regulations. While the proposed regulations provide ample opportunity for expanded protections of wetlands, they also expand wetland jurisdictions throughout New York state. Additional wetland protections It is the policy of New York State to preserve, protect, and conserve freshwater wetlands, and regulate the use of wetlands to secure the natural benefits. Freshwater wetlands can cleanse water within a system by filtering out natural and manmade pollutants. Regulation of wetlands is key in ensuring the benefits of freshwater wetlands. The proposed regulations expand the scope of DEC’s jurisdiction over wetlands throughout New York state. This expansion has the potential to expand DEC’s authority to include potentially hundreds of smaller freshwater wetlands that were not previously within DEC’s jurisdiction. This expansion will be seen implemented through several routes. First, starting on Jan. 1, 2028, the minimum threshold for regulated wetlands will decrease to 7.4 acres. This is significantly smaller than the existing threshold of 12.4 acres. Second, wetlands of unusual importance will also be included within the DEC’s jurisdiction. To qualify as a wetland of unusual importance, a wetland will only need to meet one of 11 identified characteristics. The expansion of DEC’s authority will allow for additional protection and preservation of wetlands across New York state. This expansion could affect potential development projects, and the costs associated with those projects because of additional mitigation implications. 90-day jurisdictional determinations The proposed regulations provide that the DEC shall provide a jurisdictional determination or a determination that a proposed activity requires a permit within 90 days of receipt of a request. However, this is not a definite period. The proposed regulations provide that DEC can extend this period due to weather or ground conditions. In New York state, it is likely that delay will occur between October and March when there is potential for snow cover. Delay due to weather conditions may extend the jurisdictional period well beyond the 90-day timeframe. This can lead to further delays in permitting projects. Once a determination is issued, an applicant may be required to apply for a general permit pursuant to 6 NYCRR Part 663 or, where a negative determination is issued, this may be used to provide a defense — a positive determination for a period of five years from the date the DEC issued the negative determination. Wetland of unusual importance Jurisdictional determinations are made based on DEC analysis of several factors, which are laid out in Proposed Section 664.5. Freshwater wetland or wetland also includes any lands and waters smaller than 12.4 or 7.4 acres that are of “unusual importance” as determined by the DEC pursuant to the 11 characteristics noted in Proposed Section 664.6. The characteristics include, but are not limited to, significant flooding, rare plant, rare animals, vernal pools, and floodways. The regulations define some characteristics, but not all. A wetland need only possess one characteristic in order to qualify as a wetland of unusual characteristics subject to DEC jurisdiction. Application of this standard will lead to smaller wetlands being classified as jurisdictional wetlands. While this classification system will lead to the protection of additional wetlands, it can also increase responsibilities for both the DEC and applicants due to the increased number of jurisdictional wetlands. DEC and applicants may be required to adjust their existing practices in order to implement the new regulations. In addition, both DEC and applicants will be required to work together to clarify the regulatory standards. Potential implications While the regulations expand wetland protections, they also create potential confusion surrounding the wetland-delineation process. The proposed regulations provide 11 characteristics to classify wetlands. However, they do not clarify all the applicable standards DEC personnel will use to evaluate these standards. While one goal of the proposed legislation is to create a more uniform system, the regulations will not aid in making the system predictable. One additional implication is delay in project completion. While there is a 90-day timeframe for delineations, this period can be extended by DEC. The extension of a delineation period may result in a project proponent missing other agency mandated deadlines. Future steps Comments on the proposed regulation must be submitted in writing and must be received by the close of business on Sept. 19, 2024. Public hearings on the proposed regulations are scheduled virtually on Sept. 10, and in person on Sept. 12.          

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Julia A. O’Sullivan Poarch is an associate attorney in the Buffalo office of the Syracuse–based law firm, Bond, Schoeneck & King PLLC. She assists clients in assessing environmental projects, including reviewing and preparing materials for New York State Brownfield Cleanup Program applications, 94-C Renewable Energy projects, and energy storage projects, and more. Contact her at josullivan@bsk.com. This article is drawn from the law firm’s website.