Proposed Changes to NYSDEC’s Wetland Regulations in Part 664
On July 10, 2024, the New York State Department of Environmental Conservation (NYSDEC) proposed the repeal of 6 NYCRR Part 664, their Freshwater Wetlands Maps and Classification regulations, and released a new proposed version. Changes to Part 664 have not been made since the passage of the original regulations in 1975. With the proposed changes, NYSDEC estimates that the current acreage of state jurisdictional wetlands and the amount of state wetland permitting will approximately double by 2028.
The new regulations focus on three main components. First, the current NYSDEC wetland maps will transition to informational maps and will no longer have any regulatory merit. This change is expected to take place starting January 1, 2025, when the new Part 664 regulations are anticipated to take effect.
The second component focuses on regulated acreage. Currently, unless deemed a wetland of unusual local importance, state-regulated wetlands need to be 12.4 acres in size or larger. This acreage threshold is proposed to be reduced to 7.4 acres, beginning on January 1, 2028. This change will result in many additional acres of wetlands becoming regulated.
The third element of the new regulations re-defines the criteria to determine a wetland of unusual importance. Wetlands designated as such would be deemed state-jurisdictional under the new regulations. These proposed regulations constitute Part 664.6 and propose eleven specific criteria that will be used by the NYSDEC going forward to determine when a wetland resource meets the unusual importance definition. These eleven criteria involve:
(a) Significant Flooding
(b) Urban Areas
(c) Rare Plants
(d) Rare Animals
(e) Class I Wetlands
(f) Unusual Local Importance
(g) Vernal Pools
(h) Floodways
(i) Previously Mapped Wetlands
(j) Local or Regional Significance
(k) Important for Protection of New York State’s Water Quality
The proposed process for determining whether one or more of these criteria exist is further outlined in the draft Part 664 regulations. The processes for determining whether state jurisdictional wetlands exist for a given parcel or area, and whether any state permits will be needed to advance a particular project, have also been more formally defined. Maximum 90-day turnaround times are included in the regulations for both formal requests, though there are also stipulations for the NYSDEC to request time extensions. Specifics regarding a certified mail process that would need to be followed if the 90-day response period lapses are also included.
NYSDEC is currently soliciting public comments on the proposed Part 664 regulations. The comment period is open until September 19, 2024; comments may be provided in writing to WetlandRegulatoryComments@dec.ny.gov. Links to the proposed regulations and other support documents related to Part 664 are available here.
The bottom line is that these proposed wetland regulatory changes will certainly alter the wetland permitting landscape in New York State moving forward. If you require assistance to better understand the proposed changes, or if you would like to strategize the best approach for your projects heading into 2025, please reach out to Johanna Duffy, Ecology Group leader.