Freshwater Wetlands Program

ATTENTION: Notice of Proposed Rule Making for Potential Revisions to Freshwater Wetlands Regulations 6 NYCRR Part 664

6 NYCRR Part 664, Freshwater Wetlands Jurisdiction and Classification 

The proposed rule making would amend 6 NYCRR Part 664, Freshwater Wetlands Maps and Classification regulations to implement amendments to the Freshwater Wetlands Act that take effect January 1, 2025. The rule making would define key terms, improve the freshwater wetland classification system, establish criteria for the identification of Wetlands of Unusual Importance, and establish procedures related to jurisdictional determinations.   

Notice of Public Comment Hearings 

DEC will hold two public comment hearings virtually on September 10, 2024, at 1:00 p.m. and 6:00 p.m. and an in-person hearing on September 12, 2024, at 1:00 p.m. Details below. 

VIRTUAL HEARINGS 

Two virtual public comment hearings for the proposed rule will be held on Tuesday, September 10, 2024, at 1:00 pm and 6:00 p.m., before an Administrative Law Judge (ALJ) via WebEx electronic webinar as follows and accordingly is reasonably accessible to persons with impaired mobility:

Date: Tuesday, September 10, 2024 
Time: 1:00 p.m. 

Registration Link: 
https://forms.office.com/g/cqEDZA2A5b 
Date: Tuesday, September 10, 2024 
Time: 6:00 p.m. 

Registration Link:   

https://forms.office.com/g/cqEDZA2A5b 

Persons wishing to attend or comment on the proposed rulemaking at the virtual hearing on September 10, 2024, must register to attend no later than 4:00 p.m. on September 8, 2024. The ALJ may limit the amount of time each speaker has to comment to ensure that all individuals have an opportunity to be heard. Any person may listen to the hearing by phone without pre-registration.   

All participants will be muted upon entry into the hearing. The ALJ will call each person who has registered to speak in the order in which they registered. The ALJ will continue the hearing until everyone wishing to speak has been heard or other reasonable arrangements have been made to include their comments in the record. We recommend that lengthy comments be summarized for oral presentation and submitted in writing as provided above. Equal weight will be given to oral and written comments.  The hearing will be recorded for inclusion in the record. 

IN-PERSON HEARING 

In addition to the virtual public comment hearings, an in-person public comment hearing for the proposed rule will be held on Thursday, September 12, 2024, at 1:00 pm at the DEC Central Office at 625 Broadway, Albany, NY which is reasonably accessible to persons with impaired mobility:  

Date: Thursday, September 12, 2024 
Time: 1:00 p.m. 
Registration Link:
https://forms.office.com/g/j7CkFeJNRU 

The ALJ will call each person who has registered to speak in the order in which they registered. The ALJ may limit the amount of time each speaker has to comment to ensure that all individuals have an opportunity to be heard. The ALJ will continue the hearing until everyone wishing to speak has been heard or other reasonable arrangements have been made to include their comments in the record.  DEC recommends that lengthy comments be summarized for oral presentation and submitted in writing as provided below. Equal weight will be given to oral and written comments.  The hearing will be recorded for inclusion in the record.  

Interpreter services shall be made available for either the virtual or in-person hearings to deaf persons or persons with limited English proficiency, at no charge, upon written request. Requests should be received by August 31, 2024, but DEC will make every effort to fulfill requests received closer to the meeting date. Requests can be directed to the NYSDEC Division of Communication, Education, and Engagement, either by mail (address: NYSDEC, 625 Broadway, Albany, New York 12233-4500), by telephone (518-402-8044) or by e-mail ([email protected]).

NYS DEC invites all persons, organizations, corporations, and government agencies that may be affected by the proposed revisions to attend the hearing. At the hearing, persons who wish to make a statement will be invited to speak. It is requested that oral statements also be submitted in writing. NYS DEC will give equal weight to written and oral statements, and since a cumulative record will be compiled it is not necessary for interested parties to attend each hearing. 

Notice of Public Comment Period 

• Comments on the proposed regulation must be submitted in writing and can be sent to: [email protected] with the subject line “Wetlands Part 664 Comments” or mailed to NYSDEC, Attn: Roy Jacobson, Jr., 5th Floor, 625 Broadway, Albany NY 12233-4756 and must be received by close of business on September 19, 2024. 

 Rulemaking Documents 

• Text of Proposed Regulation (PDF) 

• Regulatory Impact Statement (PDF) - provides background and additional information. 
• Supporting Documents (PDF) - Express Terms Summary, Regulatory Impact Statement Summary, Regulatory flexibility Analysis for Small Businesses and Local Governments, Rural Area Flexibility Analysis, and Job Impact Statement. 
• For more information, see our Q & A Sheet

Informational Webinar

Presentation given 8/1/24, that covers the need for the regulatory changes, the contents of the draft regulations, how the comments received earlier in the year were incorporated and the next steps to finalizing the regulations.

Freshwater Wetlands Act

The State Legislature passed The Freshwater Wetlands Act (PDF) (Environmental Conservation Law Article 24) in 1975 with the intent to preserve, protect and conserve freshwater wetlands and their benefits, consistent with the general welfare and beneficial economic, social and agricultural development of the state.

The Act identifies wetlands on the basis of vegetation because certain types of plants out-compete others when they are in wet soils, and so are good indicators of wet conditions over time. These characteristic 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 (5 hectares or larger). Wetlands smaller than this may be protected if they are considered of unusual local importance. Around every wetland is an 'adjacent area' of 100 feet that is also regulated to provide protection for the wetland.

Certain activities are exempt from regulation; other activities that could have negative impact on wetlands are regulated. The Regulated Activities webpage contains more examples of regulated activities and those exempt from wetland permits. A permit is required to conduct any regulated activity in a protected wetland or its adjacent area. The permit standards in the regulations require that impacts to wetlands be avoided and minimized. If the proposed activity will not seriously affect the wetland, a permit with various conditions is usually issued. If the proposed activity will affect the wetland, the benefits gained by allowing the action to occur must outweigh the wetland benefits lost, in order for a permit to be issued. Compensatory mitigation often is required for significant impacts to wetlands. This may include creating or restoring wetlands to replace the benefits lost by the proposed project.

The U.S. Army Corps of Engineers (ACOE) also protects wetlands, irrespective of size, under Section 404 of the Clean Water Act. Although the ACOE definition of wetland is slightly different than the state definition, the Clean Water Act protects basically the same thing -- areas of water or wet soils that support wetland plants.

Amendments to Article 24

In 2022, New York's Freshwater Wetlands Act (Environmental Conservation Law Article 24) was amended to increase application fees and make several important changes to the way the program will be administered. The following is a brief summary of the legislative amendments and their effective dates:

1. January 1, 2023 - Permit application fees are increased to better reflect the nature of the application review and to ensure that funds are available to wetland resource protection activities. Application fee information is available here.
2. January 1, 2025 - The current NYS Freshwater Wetlands Maps will no longer limit DEC regulatory jurisdiction to wetlands depicted on those maps. Instead, maps will become informational, and any wetlands that meet the applicable definition and criteria will be regulated by DEC and subject to permitting, regardless of whether they appear on the informational maps.
3. January 1, 2025 - Small wetlands of "unusual importance" will be regulated if they meet one of 11 newly established criteria listed in the new legislation.
4. January 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.

As a result of the statutory changes noted above, DEC will be working to amend DEC's freshwater wetlands regulations and update procedural steps to implement these changes. Future opportunities for reviewing and providing comment on those efforts will be posted on the DEC website when they are available.

Wetland Maps 

When enacted in 1975, The Freshwater Wetlands Act required DEC to map all those wetlands regulated by the Act with the exception of the Adirondack Park Region which is mapped by the Adirondack Park Agency (APA). This mapping requirement will be removed in January 2025 when the Amendments to Article 24 take effect.

However, the US Army Corps of Engineers (Corps) regulates most wetlands in New York State. There are no regulatory maps identifying wetlands regulated by the U.S. Army Corps of Engineers under the Clean Water Act. Wetlands shown on the DEC maps usually are also regulated by the Corps, but the Corps also regulates additional wetlands not shown on the DEC maps. That is because DEC does not map wetlands smaller than 12.4 acres in size unless they are designated as 'wetlands of unusual local importance' (ULI). The National Wetlands Inventory, prepared by the U.S. Fish and Wildlife Service, is a good source of information about where these smaller wetlands occur, but they are not regulatory maps and landowners should not rely on them exclusively.

Wetland Classification

Different wetlands provide different functions and benefits and in varying degrees. The Act requires DEC to rank wetlands in classes based on the benefits and values provided by each wetland. The wetland class helps to determine the best uses for each wetland. Higher class wetlands provide the greatest level of benefits and are afforded a higher level of protection. Lower class wetlands still provide important functions and benefits, but typically require less protection to continue to provide these functions.

The permit requirements are more stringent for a higher class wetland than for a lower class wetland.

The Clean Water Act regulates activities in a similar manner but has slightly different requirements. Landowners are encouraged to contact the U.S. Army Corps of Engineers if they anticipate undertaking activities in or near wet areas.

Contacts for Freshwater Wetlands

DEC's Freshwater Wetlands Program resides in the Division of Fish and Wildlife. Most aspects of the wetlands program are implemented by Division staff in regional offices, they can be reached at the below emails.