Wetlands Amendments Take Effect Jan. 1, 2025

The NYS DEC is poised to implement significant amendments to the Freshwater Wetlands Act that would take effect on Jan. 1, 2025. The rule clarifies jurisdictional status of smaller wetlands of “unusual importance” that meet one of 11 specific criteria contained in the Freshwater Wetlands Act (as amended in 2022.)

“This is a big, big change and it is going to require all of us to have some level of understanding to get through this,” said Andrew Fetherston, principal of Colliers Engineering & Design and co-chair of the Orange County Alliance for Balanced Growth.

So what does this all mean? The legislative amendments and their effective dates include:

• Jan. 1, 2025: The current NYS Freshwater Wetlands Maps will no longer limit DEC regulatory jurisdiction to wetlands on those maps. Instead, maps will become informational, and any wetlands that meet the applicable definition and criteria will be regulated by the DEC and subject to permitting, regardless of whether they appear on the maps.
• Jan. 1, 2025: Small wetlands of “unusual importance” will be regulated if they meet one of 11 newly established criteria in the new legislation.
• Jan. 1, 2028: The default size threshold of regulated wetlands will decrease from 12.4 acres to 7.4 acres. Small wetlands of “unusual importance” will continue to be regulated if they meet one of the criteria listed in the new legislation.

In addition, the regulations provide a revised wetlands classification system and outline the process to appeal jurisdictional determinations.

The State Legislature passed The Freshwater Wetlands Act (Environmental Conservation Law Article 24) in 1975 to preserve, protect and conserve freshwater wetlands. The Act identifies wetlands on the basis of vegetation; certain types of plants out-compete others in wet soils, and so are good indicators of wet conditions over time. Such plants include wetland trees and shrubs, such as willows and alders; emergent plants such as cattails and sedges; aquatic plants, such as water lily, and bog mat vegetation, such as sphagnum moss.

To be protected under the Freshwater Wetlands Act, a wetland must be 12.4 acres, but only 7.4 acres with the rule change. Wetlands smaller than this may be protected if they are considered “of unusual local importance.” Around every wetland is an “adjacent area,” often called a buffer, of 100 feet that is also regulated and protected. 

Regulated Activities

Under the Freshwater Wetlands Act, the DEC regulates activities in freshwater wetlands and in their adjacent areas. DEC regulates such activities to prevent, or at least to minimize, impairment of wetland functions.

Almost any activity which may adversely impact the natural values of the wetlands or their adjacent (buffer) areas is regulated. Some activities requiring a permit include:

• Construction of buildings, roadways, septic systems, bulkheads, dikes, or dams
• Placement of fill, excavation, or grading
• Modification, expansion, or extensive restoration of existing structures
• Drainage, except for agriculture
• Application of pesticides

Permit standards require that impacts to wetlands be avoided and minimized. If the activity won’t seriously affect the wetland, a permit with various conditions is usually issued. If the activity will affect the wetland, the benefits gained by allowing the action must outweigh the wetland benefits lost. Compensatory mitigation often is required for significant impacts to wetlands. This may include creating or restoring wetlands to replace the benefits lost by a proposed project.

For more information and full details on the regulatory changes, visit the DEC website at www.DEC.ny.gov.

Do We Really Need Wetlands?

Wetlands are biologically diverse systems that enhance water quality, control erosion, maintain stream flows, and provide a home to threatened and endangered species.

Here’s a few of the things wetlands and provide:

• Flood and storm control by the hydrologic absorption and storage capacity
• Breeding, nesting and feeding grounds and cover for wildlife, waterfowl, and shore birds including migratory waterfowl and rare species such as the bald eagle and osprey
• Protection of subsurface water resources and ground water recharge
• Recreational opportunities including hunting, fishing, boating, hiking, photography, bird watching and camping
• Pollution treatment by serving as biological and chemical oxidation basins
• Erosion control by serving as sedimentation areas and filtering basins
• Protection of channels and harbors by absorbing silt and organic matter
• Educational and scientific research, providing outdoor bio-physical laboratories, living classrooms and training and education resources
• Natural beauty. Wetlands are often the only remaining open areas along crowded river fronts and coastal Great Lakes regions
• Sources of nutrients in freshwater food cycles and nursery grounds and sanctuaries for freshwater fish

The Alliance for Balanced Growth (ABG) hosted an information session this summer centered on the draft rulemaking changes to Freshwater Wetlands Jurisdiction and Classification recently released by NYS DEC. Titled “Navigating New Waters: Understanding the Impact of NYS DEC Wetland Regulations,” the event, held at the Town of Wallkill Golf Course, drew a crowd of about 140 professionals from the economic development, construction, government and real estate sectors.