Legislature Expands State's Jurisdiction Over Freshwater Wetlands

Published date17 May 2022
Subject MatterEnvironment, Environmental Law
Law FirmArnold & Porter
AuthorMr Michael Gerrard and Edward McTiernan

Regulation of wetlands is one of the most significant ways that the government controls land use. While federal jurisdiction over wetlands is buffeted by the political and judicial winds, the New York Legislature has just expanded considerably the authority of the State Department of Environmental Conservation (DEC) to protect these areas and inhibit development there

Lands, commonly labelled as bogs, swamps or marshes, which are inundated with water frequently enough to develop particular soils, hydraulic regimes or vegetative communities are generally classified as "wetlands" under certain environmental laws. The Tidal Wetlands Act and Freshwater Wetlands Act, added to the New York Environmental Conservation Law (ECL) in 1973 and 1975 respectively as ECL Articles 24 and 25, established it to be the public policy of the state to preserve wetlands by limiting their use and

The 2022 budget legislation expanded DEC's role by changing the definition of areas that constitute a regulated freshwater wetland.

development. The basic regulatory scheme in both laws is to minimize development in regulated wetlands and adjacent areas and to compensate for unavoidable losses.

Until now the Freshwater Wetlands Act only granted DEC authority to regulate wetlands of a certain size or importance. However, the 2022 budget legislation expanded DEC's role by changing the definition of areas that constitute a regulated freshwater wetland. In this article we review this change and outline how it will be implemented.

Unusual Features of New York's 1975 Freshwater Wetlands Act

ECL Article 24 recognized that freshwater wetlands can provide extraordinary environmental benefits. However, as originally enacted, ECL '24-0301(1) limited the state permit program to freshwater wetlands of 12.4 acres (5 hectares) or greater, or to wetlands formally determined by DEC to be of "unusual local importance," or of an acre or more within the Adirondack Park that are adjacent to a stream or lake. The statute also provided that in order to be regulated, freshwater wetlands must be mapped. As the Court of Appeals noted in Drexler v. Town of New Castle, 62 N.Y.2d 413, 417 (1984), "the statute defines 'freshwater wetlands' as only those lands and waters 'shown on the freshwater wetlands map' and it defines the 'freshwater wetlands map' as that 'promulgated by [DEC]['] ... . Consequently, only those lands or waters satisfying either the size or the importance criterion are shown on the Stateprepared...

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