The New York State 2022-2023 Budget[1] amendment QQ updated the State’s approach to freshwater wetlands regulation. Enforcement of the Freshwater Wetlands Act is delegated to the New York State Department of Environmental Conservation (the “Department”, “DEC”, or “NYSDEC”). The amendment purposefully expands the jurisdiction of the Department. The criteria for “wetlands” in the amendment is less stringent, and thus, more land will be subject to regulation. Accordingly, more resources will likely be required for the response to delineation inquiries and for enforcement against landowners illegally polluting or filling in wetlands. The 2023 budget allocation to the Department as well as increased permit fees and penalties will help cover some of this cost. However, the already overburdened Department may struggle to carry out its duties over a greater jurisdiction without hiring additional staff. The narrow focus of this blog post is New York State’s changing regulations and its impact on the role of the New York State Department of Environmental Conservation.
Importance of Wetlands
Wetlands are integral to a healthy environment and mitigating the impacts of climate change. Filling in or polluting wetlands stunts their ability to store and filter floodwater, control erosion, improve water quality by trapping sediments, serve as a nursery to replenish fish stock, and provide a unique habitat for plants, wildlife, and fish.[2] Furthermore, wetlands are necessary for the continued existence of endangered species such as the American Black Duck.[3]
Prior to European colonization, the continental United States had over 221 million acres of wetlands.[4] However, rapid development spanning over several decades cut this number in half.[5] Regulatory protections put in place in the 1970s slowed down the loss of wetlands dramatically, but the total amount of wetlands in the United States continues to decrease each year.[6] Much of this loss is due to frequent storm surges tied to climate change, deforestation, and filling associated with development.[7] New York City, for example, has lost 99% of its freshwater wetlands.[8]
Past Regulatory Scheme
Before diving into New York’s past regulatory scheme, it is important first to note that wetlands are regulated concurrently on the local, state, and federal scale.[9] Federally, wetlands are primarily regulated by the Clean Water Act (CWA).[10] Section 402 of the CWA grants the EPA authority to regulate the discharge of pollutants from point sources.[11] The EPA has delegated this authority to most states.[12] Section 404 of the CWA grants the U.S. Army Corps of Engineers the power to regulate the “discharge of dredged and fill material to the waters of the United States.”[13] The National Environmental Protection Act (NEPA) and the Coastal Zone Management Act (CZMA) also provide a framework for review of federal actions which may impact the environment. In effect, the federal standards set the bare minimum. State regulation may be more protective or comprehensive “in various ways including adopting protective standards, covering all aquatic resources in the state, not just waters covered by the Clean Water Act, or utilizing other statutes and regulations such as smart growth requirements.”[14] Additionally, local governments have authority to exercise concurrent jurisdiction over freshwater wetlands so long as the local requirements are at least as stringent as state law.[15]
The New York State legislature passed the Freshwater Wetlands Act, Environmental Conservation Law (“ECL”) Article 24, in 1975.[16] Under the 1975 law, freshwater wetlands that were designated on an official Department map were subject to regulatory protections.[17] The mapping process utilized aerial photography, surveying, and public input.[18] Individuals seeking to interfere with the functionality of such wetlands must apply for a permit or otherwise pay penalties for engaging in regulated activities.[19] We are still reliant on the 1975 Maps as of now and will be until the relevant section of the amendment comes into effect January 1st, 2025.
The Act was designed to balance environmental and economic interests.[20] The New York State regulatory process prior to the 2022 amendment left many wetlands, including marshes, swamps, bogs, and wet meadows, unprotected by New York State law.[21] A 1990 amendment increased coverage in some discreet locations that voluntarily opted to implement more stringent requirements.[22] However, this commitment was far from universal across the state.
There are a few explanations for the 1975 Freshwater Wetlands Act’s shortfalls. First, many freshwater wetland maps are badly outdated.[23] While natural environmental forces changed the landscape over time, the Department has not updated most of the jurisdictional maps in the several decades since the Freshwater Wetlands Act was implemented. This left “more than one million acres of wetlands unmapped and without protection.”[24] The outdated maps were a result of the costly and time-consuming map amendment process; “[u]pdating the maps takes a minimum of 18 months and costs approximately $100,000 per watershed due to mandatory certified mailings that must be sent to all adjacent landowners.”[25] Second, the law only covered: (1) freshwater wetlands of 12.4 acres or more, or (2) wetlands of “unusual local importance.”[26] In any case, the Department only regulated wetlands if they were mapped.
New York’s Freshwater Wetlands 2022 Amendment
New York State Senator Pete Harckham and Assemblyman Steve Englebright proposed provisions in the NYS 2022-2023 budget that drastically transformed freshwater wetlands regulation.[27] New York Governor Kathy Hochul signed these provisions into law on April 9th, 2022, as Chapter 58 Part QQ amendment.[28] The changes relate to both wetland classification and regulation.
As of January 1st , 2025, DEC can adjust freshwater wetland maps without the formal procedures required before this date. This change will allow DEC to more frequently update the location of a wetland so long as it maintains the maps and publishes the description and date of any changes on its website.[29] In 2028, the mandatory size threshold of freshwater wetlands will be lowered from 12.4 acres to 7.4 acres. In addition, the existing maps will be considered advisory only.
Further, the amendment transforms the regulatory approach by creating a rebuttable presumption beginning January 1st, 2025, that freshwater wetlands are subject to regulation and permitting until proven otherwise, creating a protected category of wetlands with “unusual importance”[30] (a slightly lower threshold of importance than “unusual local importance”).
The amendment also increases funding for wetlands management through the Climate Smart Communities Program in the NYS Environmental Protection Fund and allows the Department to pursue higher criminal sanction penalties.[31] Further, penalties may be calculated per diem.[32] Also, of January 1st, 2023, DEC increased permit application fees.[33]
Starting January 1st, 2025, the amendment provides for the creation of an inquiry process where landowners can reach out to the Department to request an official determination of whether their land is considered a jurisdictional wetland.[34] This will give landowners greater certainty regarding their property classification. Determinations made or approved by the Department are valid for five years.[35] In a concerted effort to promote greater clarity for landowners, the amendment directs the Department to provide of educational resources and maps to the public.[36]
These changes are projected to give the Department authority over one million acres of previously unprotected wetlands.[37] The state wanted to expand authority over wetlands because, at times, the distinction between wetland and non-wetland seemed arbitrary. What seemed like a wetland to the plain eye could be considered non-wetland under the previous schema. Additionally, regulatory enforcement was complicated by disputes between landowners and the Department over delineating exactly where wetlands started and ended. Resources were spent mapping and debating jurisdiction as opposed to actual enforcement.
Impact on the NYSDEC
In some ways, the 2022 amendment will drastically increase the regulatory burden of DEC by bringing more wetlands under Department jurisdiction. On the other hand, the rebuttable presumption will prevent Department staff from wasting resources in determining what portion of a regulated property is designated wetland. Also, since the maps will be advisory only, a robust and time-consuming public comment period will no longer be necessary for map amendments.[38]
Amendment QQ purports to provide educational resources and maps to the public. However, by making the maps advisory only, the amendment further disincentivizes the Department to conduct regular updates. A system of periodically updating freshwater wetlands maps has proven to be ineffective. Frequent storms, flooding, erosion, and development quickly render maps outdated. Going forward, it is unclear what role, if any, maps will play in the wetland regulation process.
The 2023 Executive Budget proposes allocating $6.2 billion for the Department, a significant $4.3 billion increase from the previous year.[39] This budget will be divided among other key NYSDEC programs, including the brownfield cleanup program and air monitoring. The increase in permit fees and penalties will provide some additional funding that can be funneled directly back into wetlands enforcement. However, it is unclear whether the increase is sufficient to equip the Department to regulate the increased quantity of wetlands and respond to the expected flood of determinative inquiries. In 2021, New York Comptroller Tom DiNapoli reported that the Department staff was being stretched too thin.[40] The mandate of NYSDEC has expanded and capital investment has increased, but the number of staff has essentially stayed stagnant over the past 10 years.[41] NYSDEC will likely need additional technical and legal staff to handle the new regulatory burden. While the amendment is positive in that it gives the Department greater jurisdiction and enforcement tools to protect wetlands, only time will tell whether NYSDEC has the labor capacity and proper funding to translate the changes into greater protection of New York’s freshwater wetlands.
[1] S. 8008C A. 9008C, 2021-2022 Sess. (N.Y. 2022).
[2] See Planyc, New York City Wetlands: Regulatory Gaps and Other Threats, (Jan. 2009), https://www.nyc.gov/html/om/pdf/2009/pr050-09.pdf; see also New York State Department of Environmental Conservation, Freshwater Wetlands Program, Why are Wetlands Valuable?, https://www.dec.ny.gov/lands/4937.html#:~:text=The%20State%20Legislature%20passed%20The,agricultural%20development%20of%20the%20state.
[3] See Audubon, Passed! Historic Wetlands Protections Included in New York State Budget, (Apr. 8, 2022), https://ny.audubon.org/about-us/passed-historic-wetlands-protections-included-new-york-state-budget.
[4] Id.
[5] Id.
[6] Id.
[7] See id.
[8] Id.
[9] See Michael B. Gerrard & Edward McTiernan, Legislature Expands State’s Jurisdiction Over Freshwater Wetlands, 267(91) N.Y.L.J. (May 12, 2022), https://scholarship.law.columbia.edu/faculty_scholarship/3391.
[10] 33 U.S.C §§ 1251 et seq.
[11] Planyc, supra at note 2.
[12] Id.
[13] United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
[14] Id.
[15] Gerrard & McTiernan, supra note 9 at 2.
[16] ECL §25-0102 (1975).
[17] New York State Department of Environmental Conservation, supra at note 3.
[18] Carter Ledyard, NY Budget Bill Institutes Historic Reforms to the Protection of Freshwater Wetlands (May 23, 2022), https://www.clm.com/ny-budget-bill-institutes-historic-reforms-to-the-protection-of-freshwater-wetlands/.
[19] ECL §25-0102 (1975).
[20] See Spears v. Berle, 48 N.Y.2d 254, 260 (1979).
[21] Gerrard & McTiernan, supra note 9 at 2.
[22] Id.
[23] Id.
[24] Robyn Silvestri, NYS Freshwater Wetlands Act Due for a Makeover, Save the Great South Bay (Feb. 21, 2022), https://savethegreatsouthbay.org/fixing-habitats/new-york-state-freshwater-wetlands-act-due-for-a-makeover/,.
[25] Id.
[26] ECL § 24-0301(1).
[27] S. 8008C A. 9008C, 2021-2022 Sess. (N.Y. 2022); Mid Hudson News, Freshwater wetlands protected in state budget (Apr. 12, 2022), https://midhudsonnews.com/2022/04/12/freshwater-wetlands-protected-in-state-budget/.
[28] S. 8008C A. 9008C, 2021-2022 Sess. (N.Y. 2022); Carter Ledyard, supra at note 18.
[29] ECL 24-0301(1).
[30] S. 8008C A. 9008C, 2021-2022 Sess. (N.Y. 2022); “Unusual Importance” is determined by factors including, but not limited to, attenuating significant flooding, filtering drinking water, providing habitat for rare species, or being in an urban area.; Carter Ledyard, supra at note 18.
[31] S. 8008C A. 9008C, 2021-2022 Sess. (N.Y. 2022).
[32] Id.
[33] Department of Environmental Conservation, Freshwater Wetlands Permits, DEC.NY.GOV (last visited Feb. 11, 2023), https://www.dec.ny.gov/permits/6058.html.
[34] S. 8008C A. 9008C, 2021-2022 Sess. (N.Y. 2022); Gerrard & McTiernan, supra at note 9.
[35] Id.
[36] S. 8008C A. 9008C, 2021-2022 Sess. (N.Y. 2022); Audubon, supra at note 3.
[37]S. 8008C A. 9008C, 2021-2022 Sess. (N.Y. 2022); Joseph Ostapuik, ‘A huge win’: Freshwater wetlands protections included in N.Y. state budget, protecting over 1M acres, Sillive.com (Apr. 8, 2022), https://www.silive.com/news/2022/04/a-huge-win-freshwater-wetlands-protections-included-in-ny-state-budget-protecting-over-1m-acres.html.
[38] The Business Council, S.8008 / A.9008 (Budget), Part QQ (Feb. 8, 2022), https://www.bcnys.org/memo/s8008-a9008-budget-part-qq.
[39] Environmental Conservation, Department of, New York State Division of the Budget, https://www.budget.ny.gov/pubs/archive/fy23/ex/agencies/appropdata/EnvironmentalConservationDepartmentof.html.
[40] Russel, Emily “DEC has more responsibilities, needs more staff, says NYS Comptroller” NPR (Feb 8. 2022), https://www.northcountrypublicradio.org/news/story/43167/20210208/dec-has-more-responsibilities-needs-more-staff-says-nys-comptroller.
[41] Id.