Freshwater Wetlands Permits

Threshold of Regulation

Except in the Adirondack Park, where the Adirondack Park Agency administers the Freshwater Wetlands Act and employs a lower threshold, a wetland must be 12.4 acres or larger for protection under the Freshwater Wetlands Act. Smaller wetlands may be protected when the commissioner determines they have unusual local importance in providing one or more of the functions described in Article 24 of the Environmental Conservation Law (see below). Adjacent areas are outside wetlands. They extend 100 feet from the wetland boundary, measured horizontally. In rare cases, this adjacent area distance measurement may be larger.

Regulated Activities:

Under the Freshwater Wetlands Act, DEC regulates activities in freshwater wetlands and in their adjacent areas. DEC regulates such activities to prevent, or at least to minimize, impairment of wetland functions.

The wetland categories used in the regulations are identified by the types of vegetation present. The regulations identify

• classifications of uses
• procedures for conducting activities in wetlands
• requirements for conducting activities in wetlands

Almost any activity which may adversely impact the natural values of the wetlands or their adjacent areas is regulated. Some activities requiring a permit include:

• Construction of buildings, roadways, septic systems, bulkheads, dikes, or dams;
• Placement of fill, excavation, or grading;
• Modification, expansion, or extensive restoration of existing structures;
• Drainage, except for agriculture;
• Application of pesticides in wetlands.

Do Not Start a Project Before Obtaining a Permit!

You must obtain all necessary permits before commencing work on a project that requires any DEC permit. Persons commencing work on such a project before obtaining the required permits, and any contractors engaged in such work, are subject to enforcement action by the DEC. Such action may include:

1. Civil or criminal court action, or both,
2. Fines, or
3. An order to remove structures or materials or perform other remedial action, or both a fine and an order.

Exempt Activities Do Not Require a Permit

Following are the most common activities exempted from regulation. No DEC permit is required for:

1. Normal agricultural practices, except filling, clear cutting of trees, or construction of non-agricultural structures;
2. The harvesting of natural products and recreational activities (fishing, hunting, trapping, hiking, swimming, picnicking, or firewood collection);
3. Continuance of lawfully existing land uses;
4. Routine maintenance of existing functional structures such as repairing broken docks, repainting structures, or resurfacing paved areas; and
5. Selective cutting of trees and harvesting of fuel wood (not clear cutting).

Before submitting your application, and preferably very early in the planning stages of your project, visit your town or county clerk's office or DEC regional office and ask to review the wetland maps.

Locate your property and check whether or not a protected wetland is either on or adjacent to it. Not all wetlands are protected by DEC. Be aware however, that most wetlands will come under the jurisdiction of the US Army Corps of Engineers whether protected by DEC or not.

If a protected wetland is on or near your property and your project may come within 100 ft. of it, you may contact the DEC Regional Office serving the project location and request a Division of Fish, Wildlife and Marine Resources biologist to visit your site and mark the wetland boundary. Or, you may have a private consultant mark the wetland boundary for you.

Freshwater Wetland permit issuance standards require you to avoid or minimize impacts to the wetlands - you need the above information to plan for meeting these standards.

Contact your DEC regional Permits office with questions about completing the application form and other required information for your application.

Keep plans flexible until DEC staff review your proposal and comment on its conformance with permit standards. Be willing to adjust your project. On occasion, minor changes in layout can avoid disagreements and delays and, in some cases, eliminate the need for a permit.

Applicants proposing complex, multi-residential, commercial or industrial projects are strongly encouraged to schedule a pre-application conference. This meeting with DEC allows the applicant to clarify project objectives and obtain DEC's recommendations. Such feedback can improve the project environmentally and shorten the application procedure.

Minor Projects in Wetlands

1. In-kind and in-place reconstruction of existing functional bulkheads and similar structures.
2. Restoration, reconstruction, or modification of existing functional structures or facilities which involve the temporary disturbance of less than 50 square meters (approximately 540 square feet) of ground surface, excluding drainage ditches.
3. Installation of a dock, pier, or wharf built on floats or open-work supports and having a top surface area of 20 square meters (approximately 200 square feet) or less.
4. Installation of utility service to an individual residence or installation of utilities to a structure from an existing distribution facility, not involving major modifications or construction activities (eg. clearing and grading) in the wetland.
5. Selective cutting but not elimination or destruction of vegetation which does not significantly affect the function and benefits of the wetland.
6. Dredging of less than 400 cubic meters (approximately 523 cubic yards) to maintain presently existing navigational channels.
7. Routine beach regrading and cleaning.
8. Drilling of a water well for a single-family dwelling.
9. Application of a pesticide to the grounds of a private residence by the owner of that residence.
10. Drilling test wells for sampling and scientific studies but not for mineral exploration.

Minor Projects in Adjacent Areas

Examples of activities which require a permit include:

1. In-kind and in-place reconstruction of existing functional bulkheads or similar structures.
2. Restoration, reconstruction, or modification of existing functional structures or facilities which involve the temporary disturbance of less than 50 square meters (approximately 540 square feet) of ground surface.
3. Installation of a dock, pier, or wharf built on floats or open-work supports and having a top surface area of 20 square meters (approximately 200 square feet) or less.
4. Building a deck adjoining an existing dwelling.
5. Expansion or substantial modification of existing functional structures, excluding drainage ditches.
6. Installation of utilities to a structure from an existing distribution facility, not involving major modifications or construction activities (eg. clearing and grading) in the wetland. (Installation of utility service to an individual residence is an exempt activity in an adjacent area.)
7. Removal or breaching of newly constructed beaver dams to restore water levels.
8. Selective cutting but not elimination or destruction of vegetation which does not significantly affect the benefits of the wetlands.
9. Clear cutting of trees.
10. Dredging of less than 400 cubic meters (approximately 523 cubic yards) to maintain presently existing navigational channels.
11. Routine beach regrading and cleaning.
12. Drilling of a water well for a single-family dwelling.
13. Constructing a driveway to an existing residence.
14. Application of a pesticide to the grounds of a private residence by the owner of that residence.
15. Application of a pesticide pursuant to a pesticide permit issued by the DEC.
16. Intensive, organized, and repetitive use of all-terrain vehicles, air and motor boats, and snowmobiles.
17. Installation of fencing.

All regulated activities in wetlands not listed in one of the two categories above are major projects.

Examples include:

1. New construction of a residence, commercial facility, industrial facility or any related structure in a wetland or within 100 feet of the wetlands.
2. Expansion of or substantial modification of existing structures or facilities in a wetland including residential, commercial, and industrial buildings or sanitary disposal systems within 100 feet of the wetlands.
3. Draining, except as part of an agricultural activity.
4. Clear cutting of trees or other vegetation in a wetlands.
5. Filling, even for agricultural purposes.
6. Dredging except as listed above in the minor project categories.
7. Mining.
8. Road construction.
9. Construction of new or replacement of non-functional dams, docks, or bulkheads.
10. Application or storage of pesticides, except applications in an adjacent area as described above in minor projects.

As of January 1, 2023, there was an increase in Freshwater Wetlands and Tidal Wetlands permit application fees. The new fee structure is provided below.

Please be advised that the NYS Legislature passed legislation amending Section 70-0117 of the Environmental Conservation Law (Uniform Procedures) to require application fees for certain regulated activities requiring a permit from the Department. All applications received are subject to the following fee schedule for each application, as applicable, before the Department can issue a permit decision.

Freshwater Wetlands and Tidal Wetlands Application Fees - Effective January 1, 2023

Freshwater Wetlands Permits - Effective January 1, 2023

• Modification to Permits $100
• One New Single-Family Dwelling and Customary Appurtenances $300
• Multiple New Single-Family Dwellings or a New Multiple Family Dwelling and Customary Appurtenances $500
• New Commercial or Industrial Structures or Improvements $1,000
• Other projects $100

Tidal Wetlands Permits - Effective January 1, 2023

• Minor Projects or Modification to Permits $300
• Subdivision of Land or New Commercial or Industrial Structures or Improvements $2,000
• Other Projects $1,000

No cash or credit cards may be used for payment at this time. Only checks or money orders will be accepted, made payable to the New York State Department of Environmental Conservation (NYSDEC). The cancelled check will be your receipt. Please file your payment with your permit application. There are no provisions for partial or full refund once you file an application, regardless of project changes or permit decision. If you have any questions regarding these requirements, please contact the Environmental Permits Unit in any DEC regional office.

Q. What fee will apply if my application was received by DEC before January 1, 2023 and I have not received a decision by January 1, 2023?

A. Applications received by DEC before January 1, 2023 are subject to the fee amount in effect when the application was received, regardless of when DEC issues a decision.

Q. Are New York State agencies required to submit freshwater or tidal wetland application fees after January 1, 2023?

A. No. New York State agencies are exempt from freshwater and tidal wetland application fees for applications received by DEC after January 1, 2023. Applications received by DEC before January 1, 2023 are subject to the fees in effect when the application was received, regardless of when DEC issues a decision.

Q. Do the application fees apply if, in the initial review of an application, it is determined that the applicant does not need a Freshwater or Tidal Wetlands permit?

A. The application fee will not apply in a circumstance where it is determined that no wetland permit is required. If payment for the application fee has already been received by the department, it will be returned to the applicant with notification that the department has no wetland permit jurisdiction.

Q. Do the fees apply to requests for jurisdictional determinations?

A. No, the fees do not apply to requests for jurisdictional determinations because they are not applications for permit. However, in those instances in which it is determined that a permit is required, and the applicant wishes to proceed with an application, the fee will then be applicable.

Q. Does a request for an extension of a Freshwater or Tidal Wetlands permit term require a fee?

A. Yes, wetland permits are considered construction permits and an extension of the permit term is a modification to the permit, therefore, the modification fee is applicable.

Q. Do the fees apply to requests for permit reissuance?

A. Yes, permit reissuance is a category of permit modification and requires payment of the modification fee amount. For those projects that are not eligible for reissuance, a new application and the appropriate fee must be submitted.

Q. If an activity requires both a Tidal Wetlands permit and a Freshwater Wetland permit, how is the total application fee determined?

A. A separate fee for each permit category is required, based on whether the overall activity is considered major or minor. In the case of an application for a residential activity, the freshwater wetland fee is based on the residential classification and the tidal wetlands fee based on the major or minor classification for the project.

Q. If a project is both residential (i.e., a single-family dwelling or a multi-family dwelling) and is also considered major for a Freshwater Wetland permit, does the dwelling fee take precedence over the major project fee?

A. Yes, if the activity involves the construction of a dwelling or is associated with a dwelling, the dwelling classification dictates the amount of the application fee.

Q. Do the fees apply to variances?

A. Yes, applications for projects involving a variance request in conjunction with an application for a Tidal or Freshwater Wetlands permit need to submit an application fee. The amount of the fee is based on whether the project is determined to be major or minor based on the activity associated with the variance. No separate fee is necessary for the variance itself.

Q. What fee is charged to modify an already issued freshwater or tidal wetlands permit?

A. The application fee for a modification to a Freshwater Wetlands permit received by DEC before January 1, 2023 is $50.00 or $100.00 if it is received by DEC after January 1, 2023. The application fee for a modification to a Tidal Wetlands permit received by DEC before January 1, 2023 is $200.00 or $300.00 if it is received after January 1, 2023.

Q. What fee is charged for a modification request that is treated as new?

A. When a modification request causes you to treat the application as new for administrative and decision making purposes; i.e., full UPA time frames and, where applicable, public notice, then the fee should be for that of a new application as that is commensurate with the review effort.

Q. Is a wetland fee required for the transfer of a permit or pending application from one individual or entity to another?

A. No, a fee is not required for these minor permit modification transactions.

Q. What is the freshwater wetland application fee for new or modified appurtenances and accessory structures to an existing dwelling?

A.  The $100 dollar fee for “other projects” applies.

Q. How are determinations of major and minor projects made?

A. The Regional DEC Environmental Permits office will make the decision based on the Uniform Procedures Act (UPA). Where necessary, regional natural resources staff will be consulted to determine if the nature of a proposed activity, with respect to wetland boundaries and other factors, will affect the classification of the activity.

Q. If an application includes activities considered minor pursuant to wetlands jurisdiction and major pursuant to another jurisdiction, does the applicant pay a fee for a minor or major project?

A. When a project involves a permit application for both major and minor activities, the application will be processed as major. Therefore, the application fee submitted should be based on the project being major.

Q. When a project changes from major to minor, or vice versa, is the applicant charged the application fee as the project is submitted or the application fee as the project is ultimately approved?

A. When an application is submitted as major, it is considered major even if it is revised to be a minor activity during the project review process. Projects that are determined to be major following an initial determination of minor shall require an additional payment to equal a fee for a major project. The rationale for this decision is the need to undertake a more in-depth project review in either circumstance. Applicants should be aware that project alternatives and design cannot only affect permit decision making, but also the amount of the application fee.

Q. Do the freshwater wetland fees apply to projects within the Adirondack Park Agency's administration of the Freshwater Wetlands Law?

A. No, the legislation only covers freshwater wetlands under the department's jurisdiction located outside of the Adirondack Park.

Q. Do the fees apply to emergency authorizations?

A. No, in an emergency, the department must act quickly; therefore, making a minor-major decision on the action and assessing a fee prior to authorization are not practical. However, if an activity will continue past the emergency authorization period, an application for permit must be submitted and a fee is required to be submitted with that application.

Q. Are local agencies required to submit application fees?

A. Yes, local municipalities and local government agencies are required to submit an application fee for any work in freshwater and tidal wetlands. The NYS Legislative bill does not contain an exemption for such agencies. Effective January 1, 2023, only state departments are exempt from application fees.

Q. Does the fee apply to general permits?

A. No fee will be charged when an applicant seeks authorization for wetland jurisdictional activities under an established general permit. This applies to all Freshwater and Tidal Wetland general permits whether they are available to the general public or issued to a specific entity for multiple activities at various locations.

A one-time application fee is to be charged when an application is made for the initial issuance of a general permit to a state agency or utility for multiple routine on-going activities, such as routine maintenance work. If a permittee under this permit category requests a modification to the provisions of the permit, a modification fee is to be charged. Also, when a programmatic permit is about to expire and the permittee requests issuance of the permit for a new term, an application fee is to be charged as if the application were new.

Q. Is the application fee an element of completeness?

A. A completeness determination cannot be withheld because the application fee hasn't been submitted. But a permit decision can be withheld until the fee is received by the department. If a project is determined to be incomplete, the fee requirement will be identified as part of the notice of incomplete application.

Q. Can failure to pay an application fee be grounds for permit denial?

A. Yes, the NYS Legislature made the fees a requirement for an application. Failing to satisfy this requirement is grounds for permit denial.

Stringent Requirements

As in the Tidal Wetlands Permit Program, gaining permit approval under the Freshwater Wetlands regulations can be very demanding. Most construction projects in or near wetlands will adversely affect wetlands. The regulations do not encourage such development.

Generally applicants are required to:

1. Examine alternative sites and project designs that avoid and reduce impacts to wetlands;
2. Develop plans to create or improve wetlands or wetland functions to compensate for unavoidable impacts to wetlands;
3. Demonstrate overriding economic and social needs for your project that outweigh the environmental costs of impacts on the wetlands.

Given this burden, it is clearly worthwhile to avoid regulated and incompatible activities in or near wetlands.

If you must pursue a permit application, supplying with your initial submittal, all the documentation described in the web page "Application Procedures" will avoid the costs of responding to successive information requests by DEC and will reduce the total review time.

Compatibility

The Freshwater Wetlands regulations assign different levels of "compatibility" for certain projects, depending on the type of project (eg: clear cutting of trees, home construction, filling, disposal of sewage) and how close to the wetland the project occurs (ie. whether you are in the wetland or in the 100 ft. area adjacent to the wetland). The farther away from the wetland and the less permanent the disturbance, the more likely a project is to be compatible with the functions, values and benefits of the regulated wetlands.

Projects considered "usually compatible" are most likely to gain project approval. see regulations (link leaves DEC's website): scroll to section 663.5(e) "STANDARDS FOR PERMIT ISSUANCE".

Weighing Project Need Against Wetland Benefit

Projects that are found not compatible with wetland functions, values and benefits or having more than insubstantial impacts on the wetland must meet additional weighing standards contained in the regulations, as follows:

Alternatives

You must demonstrate that your proposal is the only physically or economically feasible alternative for accomplishing your objectives. You must also have no physically or economically feasible alternative on a site that is not a freshwater wetland or its adjacent area.

For example, if your objective is to gain access to a piece of your property to build a house and you plan to build a road through a wetland to get to the property, is this the only option available? Can you build the house on another site where it won't require such access? Are there non-wetland portions of the same property available for the road that do not require crossing a wetland or its adjacent area? Are there any existing access trails requiring less disturbance to upgrade and render them usable? If the access needed is temporary (eg: logging trail) can you make temporary arrangements with a neighbor to gain access through another route around the wetland? Can you use temporary methods of access such as mats or planks laid down?

Remember, the most profitable or least costly alternative is not considered the only feasible alternative under the regulations.

Avoid or Reduce Impacts

The proposed activity must minimize impacts to or loss of the wetland or its adjacent area, including impacts to the functions, values and benefits of these wetlands. This may include an examination of alternative project layouts, designs, and pollution control features for the project.

Using the above access road example, does the proposed route cross the least amount of wetland or adjacent area possible? Is the road the narrowest design necessary to allow reasonable access? Could a bridge span or a series of box culverts be used instead of a solid fill with a culvert pipe for a portion of the route? Have you proposed hay bale barriers along the road or drainage channels and sediment ponds in your design to control direct runoff and erosion?

For a housing project, design options might include fewer numbers of units or clustering of units, rearranging the pattern or layout of parking or shifting the building "footprint" to skirt around wetlands or adjacent areas.

Mitigation

Even after evaluating every reasonable alternative in arriving at final site, design, layout and pollution control measures, you may still be left with some unavoidable impacts or losses to wetlands. If you can't adequately avoid or reduce these impacts you must propose some compensation or restoration for these impacts, sometimes called "mitigation" measures.

For example, to compensate for a loss of 2 acres of cattail marsh you may offer to artificially create 4 acres of cattail marsh nearby through some careful grading, soil and drainage preparation and plantings. This approach anticipates that at least half of the artificially created marsh will survive and "make up for the 2 acres lost due to the project.

Another example may be to enhance some remaining wetland with a small pond to increase biological diversity and productivity. This may be one method of compensating for the loss of some purple loosestrife marsh which was not as diverse or productive. This approach might be desirable where you haven't adequate suitable acreage nearby to replace the acreage lost.

Ultimately, the acceptability of your mitigation plan will depend on how likely it is to effectively replace or enhance the wetland functions, values, and benefits lost due to your proposed project.

If you meet all of the weighing standards discussed above and provide an acceptable mitigation plan that adequately compensates for any unavoidable impacts to the wetland, then a permit may be issued. If your mitigation plan does not completely compensate for all unavoidable impacts and some net loss or impact to the wetland remains, however, then you are faced with the final weighing standard of economic and social need.

Economic and Social Need

The consideration of economic and social need includes both the applicant's needs (such as reasonable access to and use of the property, a safe and healthy place to live, the ability to repair property damage) and the economic and social burdens that a project may impose on the public (such as prompting the need for sewer systems, schools, fire protection, flood protection, contingency plans for contamination). The level of need is weighed against the public burden and the level of net losses or impacts to the wetland. The department must strike a reasonable balance in order to issue a permit. In general, the more important the wetland functions, values and benefits and the greater the potential loss or reduction of these attributes, the greater the amount of economic and social need that the applicant must demonstrate and document to prevail in obtaining a permit.

In Summary

Under the Freshwater Wetlands regulations, as you are required to meet each successive step in the hierarchy of standards for permit issuance, the burden on you increases to document and demonstrate your ability to meet these standards. "Take a hard look" at your project in the context of these standards before pursuing an application. You will better understand what you will need to do to successfully pursue your project.