The adoption of the NYS budget includes a few significant changes in the regulation of state wetlands. This will have an impact on land development, as well as on landowners with wetlands located on their properties.
Upcoming changes to NYSDEC regulation of wetlands and what it means for you:
The adoption of the NYS budget in April, 2022, includes a few significant changes in the future regulation of state wetlands. This will have an impact on land development, as well as on landowners with wetlands located on their properties.
The first and perhaps most notable change is that the size of the state wetlands, which will be regulated is decreasing from the current 12.4 acres to 7.4 acres, to go into effect on January 1, 2028. All state-regulated wetlands will be subject to a 100’ adjacent area regardless of its size which will be regulated land and require permitting to develop. Additionally, “wetlands of unusual or local importance” may be deemed jurisdictional with an associated 100’ buffer. Currently, there is no size minimum for wetlands of unusual importance. This can include wetlands in an area associated with a habitat of local importance, threatened or endangered species, an area susceptible to flooding, vernal pools, previously mapped NYSDEC wetlands, etc. This will go into effect on January 1, 2025.
Another significant change is the elimination of the jurisdictional standing of NYSDEC wetland maps effective on January 1, 2025. NYSDEC wetland maps will be available solely for informational purposes. This was revised because the NYSDEC Environmental Resource Mapper is not entirely reliable as wetland delineations often produce different wetland boundaries than the NYSDEC map and the mapper is not always kept up to date, leading people to believe they may not have state wetlands present on their properties.
Property owners will be responsible for delineating and mapping wetlands on their properties. Wetlands are to be presumed present unless otherwise delineated and an official jurisdictional determination is obtained from the NYSDEC, similar to the federal wetland delineation requirements. This puts increased importance on education of landowners and developers and the individual responsibility of delineating and applying for proper permitting if DEC wetlands are present. Furthermore, fees required for permits to work in wetlands and/or their associated buffers will increase, as well as fines if proper permits are not obtained prior to disturbance. The updated application fees will come out in 2023. Wetland determinations from the NYSDEC will be valid for 5 years.
BME will continue to monitor this issue as NYSDEC finalizes these rules and implementation.