USA – NEW YORK Trends and Developments Contributed by: David P Flynn and Shengkai Xu, Phillips Lytle LLP
est conservation need in New York’s wildlife action plan; • classified as a Class I wetland; • previously classified and mapped by the Depart- ment as a wetland of unusual local importance; • that are vernal pools known to be productive for amphibian breeding; • located in a Federal Emergency Management Agency (FEMA)-designated floodway; • previously mapped by NYSDEC as a wetland on or before 31 December 2024; • with wetland functions and values that are of local or regional significance; and • that have been determined by the NYSDEC Com- missioner to be of significant importance to pro- tecting the state’s water quality. Of these, the urban area criteria will likely have the most significant impact. Census-defined urban areas are expansive and, particularly in Western, Central, and Upstate New York, can include areas that out- wardly appear suburban or even rural. The urban area criteria could also bring under NYSDEC jurisdic- tion small “accidental wetlands” that materialise on undeveloped parcels due to poor stormwater man- agement. Even more suburban wetlands will become jurisdictional under NYSDEC’s proposed criteria for watersheds that have or are expected to experience significant flooding. Grandfathering A key component of the proposed regulations are grandfathering provisions for projects that are already in the planning or permitting stages. If a project received a freshwater wetlands permit from NYSDEC prior to 1 January 2025, then the project can proceed under its existing JD and many of the new regulations will not apply.
Additionally, certain projects that do not require a freshwater wetlands permit under the existing regula- tions can delay the application of the new regulations. This includes: • projects in which the lead agency accepts a Final Environmental Impact Statement pursuant to the State Environmental Quality Review Act (SEQRA) prior to 1 January 2025; • Type I actions that receive a negative declaration pursuant to SEQRA prior to 1 January 2025; and • projects that receive written site plan approval from a local government. Depending on whether these projects are considered “major” or “minor” under existing NYSDEC regula- tions, the proposed wetlands regulations will not affect the project parcel for two to three years. The Sackett effect The freshwater wetlands regulations significantly expand the number of state-regulated wetlands just as the number of federally regulated wetlands seem- ingly shrank in the wake of the United States Supreme Court’s decision in Sackett v Environmental Protection Agency , 598 U.S. 651 (2023). In Sackett , the Supreme Court eliminated the broader of two tests used to determine federal jurisdiction over wetlands pursuant to the Clean Water Act. The EPA and United States Army Corps of Engineers subsequently amended the regulatory definition of “waters of the United States”. Whatever reprieve Sackett may have offered to land- owners and developers at the federal level might now be offset by these new state regulations, under which vast acres of wetlands that were previously unregu- lated by the state will now be subject to permitting requirements.
476 CHAMBERS.COM
Powered by FlippingBook