Pattern for Progress Report Lays Out the Benefits, Challenges to NYS Wetlands Regulatory Changes
Late last month, Hudson Valley Pattern for Progress issued an informative and insightful report that provides a critical look at how the regulatory changes to the state’s wetlands regulations will affect the state’s ecology, but also its potential impacts to property development processes and activity.
The Pattern report entitled “Get Your Feet Wet” provides a comprehensive analysis of this seismic shift in environmental regulations. As Pattern noted, for the first time in a half century New York State has changed the way it identifies and classifies wetlands. The change, which went into effect on Jan. 1, 2025, has been met with mixed reactions. “Many hope the new process will guard additional wetlands that protect drinking water quality, serve as flood buffers, and provide critical habitat for thousands of rare and protected species. Others are concerned that updated wetland regulations will stifle New York's already slow land-use approval process, interfere with smart-growth goals, and impede the production of housing and clean energy,” Pattern stated.
“Our report acknowledges that New York's updated wetland regulations strengthen protections for vital ecosystems, while also introducing new procedural hurdles that could extend development timelines and costs,” Pattern CEO Adam Bosch said. “Our goal is to foster an informed conversation that accounts for the need to protect the Hudson Valley's environmental quality while providing quick, science-based answers about where and what we can build in our communities.”
In the report, Pattern chronicles the key regulatory changes, which include:
· Regulatory freshwater wetlands map replaced by more accurate non-regulatory informational wetlands map. Emphasis shifts from the wetland boundaries on an official map to wetland delineation based on field observations.
· DEC jurisdiction expanded to include newly-defined “wetlands of unusual importance” which are wetlands of any size than meet one of 11 criteria.
· Minimum size for jurisdictional wetlands decreases from 12.4 acres to 7.4 acres (effective Jan. 1, 2028).
· New multi-step jurisdictional determination (JD) process that establishes whether jurisdictional wetlands are present on a parcel using remote analysis from the DEC central office; wetland delineation based on on-site field observations and the DEC regional office establishes the extent to which the proposed project impacts jurisdictional wetlands.
· Projects are exempt from the new rules if they received one of the following types of approvals before January 1, 2025:
1) A negative declaration for Type I or Unlisted action under State Environmental Quality Review Act (SEQRA) regulations.
2) A Final Environmental Impact Statement accepted by a lead agency under SEQRA regulations.
3) A written site plan approval from a local government.
4) Minor projects (e.g. repairs, in-kind replacement of an existing structure, fence installation) that meet one of the above conditions are exempt from the new rules until Jan. 1. 2027. Major projects (e.g. new commercial or industrial construction, clear cutting, road construction) that meet one of the above conditions are exempt from the rules until July 1, 2028.
The report, which details the benefits the new wetlands regulations will bring, also conveys they will potentially cause delays in the development approval process.
“The updated regulations are anticipated to increase the workload for DEC staff, raising concerns about whether there is adequate staff capacity to handle the additional demand. With the introduction of new parcel JD (jurisdictional determination) and project JD procedures, DEC staff may be overwhelmed by JD requests leading to long review times,” the report stated. “Prolonged review timelines are problematic for development, especially for large or complex projects that are balancing several other factors like seasonal construction windows, financing, and ongoing soft costs. In a worst-case scenario, the DEC could become so overwhelmed by JD requests that they start missing final response deadlines. Missed response deadlines result in a 5-year waiver from DEC regulation, completely undermining the intended goal of the regulations to improve wetland protections.”
However, Pattern concluded its “Get Your Feet Wet,” report on an upbeat note, stating: “At the time of this report, it is too early to definitively judge the new rules. While there are some immediate concerns and unanswered questions discussed in this report, many of them have potential solutions in the works. There will undoubtedly be obstacles and growing pains during this period of transition, but none of the issues identified in this report present a problem that can’t be solved with the right adjustments. With a balanced approach, New York State can be a place with both strong wetland protections and common-sense policies that accommodate growth and development.”
To access the full report go to: https://storymaps.arcgis.com/stories/164b85cf48834c76bc3b666e521981d2
