DEC Wetland Regulation Updates Have Potential Issues For Other Programs, Watershed Stakeholders Say

ARKVILLE - The New York State Department of Environmental Conservation (DEC) published its proposed revisions to freshwater wetland regulations to be initiated in January 2025.

Coalition of Watershed Towns (CWT) Attorney Jeff Baker believes the possible issues are state-wide and not New York City Watershed specific.

The revisions include the discontinuation of pre-mapped wetland areas. This adjustment means more in the field assessment which could lengthen timelines for projects and increase costs, said Baker. Issues could arise for New York City Department of Environmental Protection (DEP) projects, he explained, since they are built off state regulations. While Baker is unsure of how the regulations will be interpreted by DEP staff, he said there could be the assumption that everything is a wetland and will need to be evaluated by DEC before moving forward with a project. This interpretation would cause significant delays for simple undertakings. For example, Baker said an individual seeking development of one dwelling on a property could experience up to a year delay awaiting DEC approval and could end up spending an additional $10,000. He said DEC's proposed changes do not appear to include plans for additional staffing necessary to execute regulations.

Catskill Watershed Corporation (CWC) Executive Director Jason Merwin said some of the CWC programs could be affected by elongated timelines. Specifically, Merwin is concerned about the septic program which provides homeowners reimbursement for septic repair or replacement within the watershed. He said the program is written to have a required two-year work completion timeframe which would need to be adjusted if the wetland proposed regulations disrupt it. He added that wetland areas were more easily avoided with the pre-mapped system DEC had in place.

Another issue Baker foresees with increased field evaluation is the opportunity for mischievous or incorrect evaluations to be conducted. Baker gave an example of an issue that went to court in the late 80s or early 90s. A pond being evaluated in Long Island was found to contain Tiger Salamander eggs, which in this location, Baker said, discovery of any of these eggs deem the pond a wetland. Current DEC pond regulations have one regulatory measure that includes a field evaluation for invasive or endangered species. Ponds could be subject to wetland regulations if invasive or endangered species eggs are found in or around the waters. The number of eggs that deem the waterway a wetland is different depending on location throughout the state. The Long Island pond owner sued DEC regarding its determination that his pond was a wetland and won the case, said Baker. It turned out that the DEC evaluator had lied, which was determined after the owner conducted a study that found the waters to be too acidic to sustain Tiger Salamanders. Baker foresees a greater opportunity for situations like the Long Island pond case to surface with the increased field evaluations.

The smaller property owners are the ones who will be negatively affected by this, said Baker, arguing that the larger development companies could handle the proposed adjustments. "This seems counterintuitive to the affordable housing initiative," Baker added.

The definition of wetlands of "unusual importance" could potentially cause issues as well, continued Baker. The proposed changes include 11 newly established criteria for what is considered a wetland of unusual importance. Such wetlands are permitted to be smaller than the current 12.4-acre minimum limit for determining something a wetland.

Another proposed adjustment is that DEC's default size threshold of 12.4 acres will decrease to 7.4 acres in 2028.

The wetland changes are being adjusted after the State Legislature changed the wetland law through budget approval in 2022. Written comments on the proposed changes closed on Feb. 20. Baker said a secondary comment period is anticipated in the summer. For more information visit dec.ny.gov/nature/waterbodies/wetlands/freshwater-wetlands-program