USA – NEW YORK Trends and Developments Contributed by: Lindsey E. Haubenreich, Joseph P. Heins, Timothy P. Moriarty and Kimberly R. Nason, Phillips Lytle LLP
jurisdiction. However, the 2022 amendments introduced 11 new criteria by which a wetland is now subject to state regulation regardless 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 individuals statewide; • containing a habitat for an essential behavior of an endangered or threatened species, or a species of special concern or listed as a species of greatest conservation need in New York’s wildlife action plan; • classified as a Class I wetland; • previously classified and mapped by the NYSDEC as a wetland of unusual local impor - tance; • 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 Commissioner to be of significant importance for protecting 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 outwardly appear suburban or even rural. The urban area criteria could also bring under NYSDEC jurisdiction small “acciden- tal wetlands” that materialize on undeveloped parcels due to poor stormwater management. And even more suburban wetlands will become jurisdictional under NYSDEC’s proposed crite - ria for watersheds that have or are expected to experience significant flooding. Grandfathering A key component of the new regulations is grandfathering provisions for projects that are already in the planning or permitting stages. If a project received a freshwater wetlands per - mit from NYSDEC prior to 1 January 2025, then it can proceed under its existing jurisdictional determination, and many of the new regulations will not apply. Additionally, certain projects that do not require a freshwater wetlands permit under the existing regulations can delay the application of the new regulations. These include: • projects in which the lead agency accepts a Final Environmental Impact Statement pursu - ant to the State Environmental Quality Review Act (SEQRA) prior to 1 January 2025; • Type I actions that receive a negative declara - tion 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 con - sidered “major” or “minor” under existing NYS - DEC regulations, the proposed wetlands regula - tions will not affect the project parcel for two to three years.
1278 CHAMBERS.COM
Powered by FlippingBook