by Roger Downs and Elizabeth Ahearn, Chapter Conservation Staff
On April 8, 2022 Governor Hochul and the State Legislature came to an agreement on a $220 billion state Budget which included historic wetlands protection reform, the same reforms that the Sierra Club and partner organizations have been fighting to enact for almost two decades. This victory came at a pivotal time when existing wetlands both are becoming the centerpiece of the state’s climate resiliency plans and in the cross hairs of increasing development and degradation. The crisis for New York wetlands, which have diminished by 60% over the last two centuries, stems from unchecked development, regressive court decisions, federal regulatory rollbacks, insufficient DEC permitting capacity, and political pressure to stifle an already broken wetlands mapping program.
This new law will remove cumbersome red tape that has stymied wetlands protection and give the Department of Environmental Conservation (DEC) new tools to better identify and protect wetlands as they become threatened. Before the new law was passed a wetland could only receive protection in New York if it was delineated on an existing freshwater wetlands map prepared by DEC after lengthy public comment. But most of the State’s official wetlands maps have not been updated in over 20 years, making them woefully outdated, and the amendment process could be time-consuming and overly burdened with administrative costs. As a result there were hundreds of thousands of acres of wetlands in high development areas of New York State that were not on official maps and did not receive desperately required protection. All that is about to change.
Specifically, the wetlands reforms passed in the SFY 2022-23 Budget will:
Forgo the jurisdictional nature of NY’s existing state freshwater wetlands maps (starting in 2025 after new rules and regulations are promulgated.)
Allow the DEC to protect ANY wetland that is 12.4 acres or greater in size or smaller wetlands of “unusual importance” that meet the scientific requirements of wetlands, based upon criteria plants and hydric soils.
Lower the threshold for mandatory permitting for freshwater wetlands from 12.4 to 7.4 acres (in 2028).
Identify criteria for permitting smaller wetlands of ‘unusual importance,’ such as wetlands that attenuate significant flooding, filter drinking water, provide habitat for rare species, or are located in an urban area.
For the first time add protection to vernal pools - some of NY’s smallest but most ecologically significant wetlands for breeding amphibians and invertebrates.
Add language creating a rebuttable presumption that freshwater wetlands are subject to regulation and permitting until proven otherwise.
Increase fees and fines that hadn’t been updated since the 1980s.
Remove red tape and agency costs related to wetlands protection.
Provide funding for wetlands management and local mapping of freshwater wetlands through the Climate Smart Communities Program in the NYS Environmental Protection Fund.
Direct the DEC to create educational resources for landowners and local governments on how to identify freshwater wetlands.
Require the DEC to consult with the federal government, colleges and universities, environmental organizations, and other entities to increase the accuracy of the freshwater wetlands maps.
Require the DEC to keep and maintain the freshwater wetlands maps as an online informational resource.
The need for these new reforms also became more urgent because of the ongoing uncertainty of wetlands protection at the federal level, including the new supreme court, which is poised to overturn key provisions of the Clean Water Act by the end of 2022.
In addition, New York’s new wetlands law aligns with the newly codified goal of preserving 30% of New York State’s open space by 2030 and the $4.2 billion ‘Clean Water, Clean Air, Green Jobs, Environmental Bond Act,’ which is slated to go before voters in the fall. The aims of the Bond Act to restore habitat, protect drinking water and prevent catastrophic flooding, combine powerfully with a wetlands regulatory reform agenda. But spending billions on restoring degraded wetlands without doing all we can to prevent existing wetlands from becoming degraded would be a poor return on our investment. This vision of a climate-resilient and adaptive New York State is not possible without the type of groundbreaking wetland reforms included in the Budget.
Sierra Club applauds and thanks Governor Hochul, Senate Majority Leader Stewart-Cousins, Senator Kaminsky, Senator Harckham, Assembly Speaker Heastie, and Assemblyman Englebright for expanding protections for New York’s freshwater wetlands in this year’s state Budget agreement. These reforms are an enormous victory for New York’s freshwater wetlands, which will at last benefit from the proper stewardship and protective safeguards they deserve.