USA – NEW YORK Trends and Developments Contributed by: Lindsey E. Haubenreich, Joseph P. Heins, Timothy P. Moriarty and Kimberly R. Nason, Phillips Lytle LLP
City government to overcome bureaucratic bar - riers and expedite the completion of conversion projects. Regulation of Wetlands in New York A post-Sackett world In recent years, the number of federally regu - lated wetlands seemingly shrank in the wake of the United States Supreme Court’s decision in Sackett v Environmental Protection Agency, 598 US 651 (2023). In Sackett, the Supreme Court eliminated the broader of two tests used to determine federal jurisdiction over wetlands pur - suant to the Clean Water Act. The Environmen - tal Protection Agency (EPA) and United States Army Corps of Engineers (Corps) subsequently amended the regulatory definition of “waters of the United States” . In addition, in March of 2025, the EPA and Corps jointly issued a Memoran - dum to the Field to: • rescind multiple policy memoranda and train - ing materials issued during the Biden Admin - istration; and • note future regulatory activities that will be undertaken to clarify the meaning of “continu- ous surface connection” for adjacent jurisdic - tional wetlands. However, whatever reprieve Sackett may have offered to landowners and developers at the federal level might now be offset by new State regulations, under which vast acres of wetlands that were previously unregulated by New York will now be subject to permitting requirements. Freshwater Wetlands Regulations In December 2024, the New York State Depart - ment of Environmental Conservation (NYSDEC) adopted final regulations to implement the 2022 amendments to the Freshwater Wetlands Act, codified in ECL Article 24. The 2022 amend -
ments significantly expand NYSDEC’s authority. First, NYSDEC’s regulatory authority is no longer limited to the wetlands mapped on its freshwater wetlands maps, which have historically put land - owners on notice that state-regulated wetlands are located on their property. Instead, NYSDEC now has regulatory authority over all freshwater wetlands at least 12.4 acres in size, regardless of whether they have been mapped. In addi - tion, NYSDEC will have 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. New jurisdictional determination procedures Extending NYSDEC’s jurisdiction to unmapped wetlands creates a rebuttable presumption that any area meeting the Environmental Conserva - tion Law’s definition of freshwater wetland is covered by the law and subject to its permitting requirements. As a result, the state program now resembles the federal wetlands program admin - istered by the Corps; most landowners have to obtain a wetlands delineation and request a jurisdictional determination from NYSDEC. Upon request, the department will have 90 days to provide a jurisdictional determination, subject to weather and ground conditions. However, in a change from an earlier draft of the regulations, if NYSDEC fails to provide a jurisdictional determi - nation within 90 days plus an additional 10 days following notice of its failure, then the depart - ment must waive its jurisdiction over the parcel’s wetlands for five years. Wetlands of unusual importance Unlike at the federal level, where wetlands of any size can be regulated, wetlands previously had to be at least 12.4 acres to come under NYSDEC’s
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