Regulation is governmental oversight and control of certain actions that may affect wetlands. It generally entails a review and authorization by a governmental agency before an activity can be undertaken. It includes laws, rules and regulations, plus executive orders. In New York, wetlands are regulated at the state and federal level, and in some locations, at the local level as well.
State Wetlands Regulatory Programs
The Freshwater Wetlands Act (Act), Article 24 of the Environmental Conservation Law, provides DEC and the Adirondack Park Agency with the authority to regulate freshwater wetlands in the state. The NYS Legislature passed the Freshwater Wetlands Act in 1975 in response to uncontrolled losses of wetlands and problems resulting from those losses, such as increased flooding. The FWA contains the following Declaration of Policy:
"It is declared to be the public policy of the state to preserve, protect and conserve freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of freshwater wetlands, and to regulate use and development of such wetlands to secure the natural benefits of freshwater wetland, consistent with the general welfare and beneficial economic, social, and agricultural development of the state (ECL Article 24-0103)."
For a brief summary of the Act please see: Freshwater Wetlands Act and Landowners.
The Act protects those wetlands larger than 12.4 acres (5 hectares) in size, and certain smaller wetlands of unusual local importance. In the Adirondack Park, the Adirondack Park Agency (APA) regulates wetlands, including wetlands above one acre in size, or smaller wetlands if they have free interchange of flow with any surface water. The law requires DEC and APA to map those wetlands that are protected by the Act. In addition, the law requires DEC and APA to classify wetlands. Inside the Adirondack Park, wetlands are classified according to their vegetation cover type. Outside the Park, DEC classifies wetlands according to 6NYCRR Part 664, Wetlands Mapping and Classification Regulations from Class 1, which provide the most benefits, to Class IV, which provide the fewest benefits. Around every regulated wetland is a regulated adjacent area of 100 feet, which serves as a buffer area for the wetland.
The main provisions of the Act seek to regulate those uses that would have an adverse impact on wetlands, such as filling or draining. Other activities are specifically exempt from regulation, such as cutting firewood, continuing ongoing activities, certain agricultural activities, and most recreational activities like hunting and fishing. The Freshwater Wetlands Permit Program webpage contains more examples of regulated activities and those exempt from wetland permits. In order to obtain a Freshwater Wetlands Act Permit, a project must meet the permit standards in 6NYCRR Part 663, Freshwater Wetlands Permit Requirement Regulations and be consistent with the public health, safety, and welfare. The project must also avoid impacts to wetlands, and if unavoidable, must minimize impacts. Then, project sponsors may use mitigation to offset residual project impacts in the wetland so that it meets the weighing standards in the regulations. This progressive approach to reviewing permits is referred to as "sequencing." For further information about obtaining freshwater wetlands permits, please see our Division of Environmental Permits.
Regulations and Documents (for areas outside the Adirondack Park)
6NYCRR Part 663 Freshwater Wetlands Permit Requirements Regulations. This regulation identifies the standards for issuing Article 24 permits, and explains how mitigation may be used to help meet permit standards.
6NYCRR Part 664: Freshwater Wetlands Mapping and Classification Regulations. This regulation contains the criteria for classifying wetlands as Class I, II, III, or IV. It also contains the procedures for amending the regulatory maps and for mapping wetlands smaller than 12.4 acres in size.
6NYCRR Part 665: Local Government Implementation of the Freshwater Wetlands Act and Statewide Minimum Land Use Regulations for Freshwater Wetlands. This regulation contains the procedures for how local governments may assume the permitting authority for Article 24 within their locality. It also identifies the compatibility of 43 categories of activities with the protection of wetlands and their benefits.
Freshwater Wetlands Regulations - Guidelines on Compensatory Mitigation (PDF, 43Kb). This document provides DEC staff with guidance on how to use compensatory mitigation as part of the wetlands regulatory program. It provides a framework for project specific decision, but does not serve as a prescriptive approach to permit decisions.
Freshwater Wetlands - Delineation Manual (PDF, 198Kb). This document provides a technical, though not mandatory, methodology for assisting in performing field delineations of freshwater wetlands for the FWA regulatory program. It is similar to the 1987 federal Wetlands Delineation Manual used by the federal agencies in regulating wetlands.
Also at the state level, tidal wetlands are regulated under the Tidal Wetlands Act (Article 25 of the Environmental Conservation Law), which is administered by our Bureau of Marine Resources' Marine Habitat Protection Section, located on Long Island. Freshwater wetlands adjacent to navigable or protected streams also are regulated under the Stream Protection Act (Article 15 of the Environmental Conservation Law). DEC also may regulate wetlands through issuance of the Section 401 water quality certificate, in response to Section 404 permits.
Local Wetlands Regulation
Wetlands also may be regulated under local ordinances either specific to wetlands, or as part of other local land-use decisions, such as subdivision approvals or waterways protection programs. Not all local governments protect wetland specifically, but many do on Long Island and in southeastern New York. The Dutchess County EMC has prepared an excellent booklet entitled Local Strategies for Wetland and Watercourse Protection: An Educational Guide to assist localities with wetland protection options at the local level.
Other Wetlands Conservation Programs
Acquisition can include a wide variety of protection strategies. It most frequently is associated with purchase of all rights and title to the land -- full fee title acquisition. It also can include acquisition of only some of the rights to the land, usually the right to develop the land, which leaves the property in its undeveloped, natural state. Acquisition also can include leases, conservation easements, donations, bargain sales, and transfers of development rights. It is the variety of means by which to guarantee protection or control of all or some rights to the use of the land.
New York has an active wetlands acquisition program. The state's Open Space Plan directs all current state acquisition efforts, including those for wetlands.
Restoration, Creation, and Management, in general, include hands-on actions taken to manipulate a wetland to create, restore, enhance or protect wetlands functions and benefits. Restoration and creation add to the existing resource base, while management actions improve or maintain the quality of existing wetlands.
DEC is very active in wetlands restoration. Wetlands are restored for management purposes, and include projects on the Niagara River, as part of the Northern Montezuma project, and along the Hudson River. The 1997 Clean Air/Clean Water Bond Act includes funding for the restoration of wetlands. DEC also works with other agencies such as the US Department of Agriculture(USDA)'s Natural Resources Conservation Service and the US Fish and Wildlife Service (FWS) to restore wetlands on privately owned farmland.
Research and Inventories are the means by which information is gathered to answer pertinent questions. It identifies threats, develops remediation and mitigation techniques, develops details on functions and values of wetlands, and explores means to protect and augment those functions. Research includes traditional data gathering, for empirical research or to answer management or policy questions. It also includes mapping and inventory work, status and trends studies, and monitoring of wetlands.
DEC maps its freshwater wetlands resource under Article 24 of the Environmental Conservation Law (ECL), the Freshwater Wetlands Act. The Natural Heritage Program has undertaken studies to ecologically classify wetland communities and to identify reference sites for certain classes of wetlands. The Wetlands Program has used Environmental Protection Agency (EPA) funding under the State Wetlands Grants program to undertake a number of studies on wetlands. These include a Freshwater Wetlands Status and Trends; an Evaluation of the W-48-D Small Marsh Creation Program; and a project categorizing the hydrogeomorphic status of wetlands in 11 selected watersheds, funded by EPA and conducted by the FWS.
Education, Outreach, and Technical Assistance are the means by which information is provided to users to make decisions, affect behavior and create greater awareness. Education generally is focused on a broader segment of the public and most often has a broader theme, such as the value of wetlands. Outreach efforts are more specific, targeted at an affected group, such as landowners, about a specific topic, such as how to get a permit. Finally, technical assistance is usually very hands-on and technical in nature, such as how to restore a wetland on converted cropland.
The wetlands program has worked with EPA, US Army Corps of Engineers (ACOE), county government and the Land Conservancy of the Saratoga Area to undertake an outreach effort in Saratoga County. Workshops were held for local government officials to familiarize them with wetlands and wetlands protection programs, and a guidebook was produced to help citizens learn about wetlands and guide them to areas where they could view wetlands.
