As a follow up to our recent blog post regarding the April opinion from the New York State Supreme Court, County of Albany annulling the DEC’s adoption of regulations implementing statutory amendments expanding the DEC’s regulations to freshwater wetlands in the state (“Amendments”), the DEC just issued: a Regulations Update, confirming that the Amendments are no longer effective and that the DEC will revert to its previous regulations until the DEC completes the promulgation of new regulations; and Standard Operating Procedures, which is a guide to implement the previous regulations and confirm how the DEC establishes jurisdiction.
These documents confirm that the DEC will revert to only exercising jurisdiction over wetlands (and their 100-ft adjacent areas) that are either 12.4 acres or larger; or which were previously mapped before January 1, 2025, until the DEC promulgates new regulations (i.e., temporarily eliminating jurisdiction going forward over wetlands smaller than 12.4 acres that were not previously mapped).
The Regulations Update also answers numerous questions that arise from the reversion to previous regulations, including: confirming that if you received a Jurisdictional Determination letter citing only Unusual Importance, such determination may be subject to a reassessment (which can be requested through the DEC website); and confirming that the DEC will honor certain grandfathering provisions set forth in the Amendments for certain projects which received written confirmation (i.e., projects receiving a permit prior to Jan. 1, 2025 can operate under same until the expiration of that permit and projects that did not require a permit prior to Jan. 1, 2025, which received an FEIS, Negative Declaration, or Site Plan Approval and whereby the Project has commenced shall not be subject to the Amendments until either Jan. 1, 2027 or 2028).
The DEC intends to propose new regulations, and indicates that it will provide opportunities for public review and comment. Zarin & Steinmetz LLP will continue to track the DEC’s process.