Wetlands
The public policy of the State of New York is to preserve and protect both tidal and freshwater wetlands by regulating their use and development. The Tidal Wetlands Act requires the NY DEC to map and inventory marine tidal, coastal or estuarine wetlands. The Freshwater Wetlands Act empowers the NY DEC to identify and map freshwater wetlands of 12.4 acres or larger, or smaller if the NY DEC determines that they are of “unusual local importance.”
Wetlands are subject to concurrent regulation by federal and state governments. Federal wetland regulations are derived from the permitting requirements of § 404 of the Clean Water Act, which apply to discharges into navigable waters of the United States. Waters of the United States include wetland areas adjacent to navigable waters or their tributaries, and non-navigable waters whose use or misuse could affect interstate commerce. Wetlands are also defined under federal regulation by their ability to support the types of vegetation typically found in wet soil areas. Wetland areas are determined by investigating soils, vegetation, and hydrology. The definition of a wetland under federal regulation does not take into consideration the size of the wetland like the New York regulations do. Areas that are federally protected wetlands may not be State protected wetland areas. Thorough field investigation is often necessary to determine the existence and extent of wetland areas under both state and federal regulations.
Additionally, under state law, local governments retain exclusive jurisdiction over freshwater wetlands that are less than 12.4 acres or are not deemed by NY DEC to be of “unusual local importance.” Under this authority they are statutorily authorized to adopt and implement a freshwater wetlands protection law to be applicable to all freshwater wetlands wholly or partially within their jurisdiction, provided that the local law enacted by the local government is more or equally as protective as the Freshwater Wetlands Act.
Any person wishing to conduct regulated activities in a state-regulated freshwater wetland must obtain either a permit or, if applicable, a letter of permission from the NY DEC or authorized local government. A party seeking review of an order or decision upon a freshwater permit application has the option of proceeding before the Freshwater Wetlands Appeal Board or filing a special proceeding in State Supreme Court pursuant to Article 78 of the NY Civil Practice Law and Rules. The Freshwater Wetlands Appeal Board is empowered to hear appeals from all decisions issued under the Freshwater Wetlands Act. A timely filing of a notice of appeal with the Freshwater Wetlands Appeal Board precludes any party from seeking judicial review until the Board renders its decision.
You can review the details of the NYSDEC Freshwater Wetlands Program here:
http://www.dec.state.ny.us/website/dfwmr/habitat/fwwprog.htm.
If you have any questions relating to project development in a wetland area or the application for a permit or appeal from a permit determination, please contact me via email, or by mail or telephone and I'll be happy to answer your questions.
This memorandum was accurate when written. However, statutory and regulatory provisions, and how they are interpreted, change over time. The matters discussed in this memorandum should not be considered legal advice and readers should seek advice of counsel for any questions involving personal or business decisions relating to the issues raised herein.
