USA – NEW YORK Trends and Developments Contributed by: David P Flynn and Shengkai Xu, Phillips Lytle LLP
ment all diligence and compliance details and fulfil continuing obligations in transactions involving con- taminated properties. Climate Change Superfund Act On 26 December 2024, Governor Hochul signed the Climate Change Superfund Act into law, and on 28 February 2025, the law was codified into a new Article 76 of the ECL. NYSDEC is charged with promulgating regulations to implement the statutes before 26 June 2026. ECL Section 76-0103 establishes a Climate Change Adaptation Cost Recovery Program, seeking to recov- er USD75 billion from fossil fuel businesses whose covered emissions exceed one billion tons that are attributable to extraction and refining activities between 2000 and 2024. NYSDEC is charged to iden- tify responsible parties based on strict liability stand- ards and serve notice of cost recovery demand, no later than 30 June 2028, to seek compensatory pay- ments that are proportionate to a party’s greenhouse gas emissions that exceed the statutory threshold. ECL Section 76-0103 (2)(g) mandates that at least 40% of the expenditure from the cost recovery pro- gramme are to be spent on Climate Change Adaptive Infrastructure Projects and at least 35% of the overall expenditure use dedicated to benefit disadvantaged communities. Climate Change Adaptive Infrastruc- ture Projects include, among others, coastal wetlands restoration projects, upgrades to storm water drain- age systems, defensive upgrades to roads, bridges, subways and transit systems, relocation and retrofit- ting wastewater treatment plants that are vulnerable to flooding, installation of energy-efficient cooling systems, response programmes to extreme weather events, and preventive health care programmes and medical care to treat illness and injuries caused by climate change. Freshwater wetlands regulations In July 2024, NYSDEC officially released its proposed regulations to implement the 2022 amendments to the Freshwater Wetlands Act, codified in ECL Article 24. The regulations arrived as two of the major 2022 amendments took effect on 1 January 2025. First, NYSDEC’s regulatory authority is no longer limited to
the wetlands mapped on the Department’s freshwa- ter wetlands maps, which have historically put land- owners on notice that state-regulated wetlands are located on their property. Second, NYSDEC now has regulatory authority over wetlands of any size that meet one of 11 new criteria for “wetlands of unusual importance”. The third major amendment will see the threshold size of NYSDEC-regulated wetlands decrease from 12.4 acres to 7.4 acres and will take effect on 1 January 2028. Extending NYSDEC’s jurisdiction to unmapped wet- lands created a rebuttable presumption that any area meeting the ECL’s definition of freshwater wetland is covered by the law and subject to its permitting requirements. As a result, the state’s programme resembles the federal wetlands programme adminis- tered by the US Army Corps of Engineers; most land- owners now have to obtain a wetlands delineation and request a jurisdictional determination (JD) from NYS- DEC. Upon request, the Department will have 90 days to provide a JD, barring weather and ground condi- tions. However, in a change from an earlier draft of the regulations, if NYSDEC fails to provide a JD within 90 days plus an additional ten days following notice of its failure, then the Department must waive its jurisdiction over the parcel’s wetlands for five years. Unlike at the federal level, where any size wetland can be regulated, wetlands generally have to be at least 12.4 acres to come under NYSDEC’s jurisdiction. However, the 2022 amendments introduced 11 new criteria by which a wetland will be regulated regard- less of its size. These include wetlands: • located in a watershed that has experienced significant flooding in the past, or is expected to experience significant flooding in the future from severe storm events related to climate change; • located in or partially within an urban area, as defined by the United States Census Bureau; • containing a plant species occurring in fewer than 35 sites statewide or having fewer than 5,000 indi- viduals statewide; • containing a habitat for an essential behaviour of an endangered or threatened species, or a species of special concern or listed as a species of great-
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