A Guide to Wetlands and Development in New York State
frequently asked questions
What are wetlands and why are they protected?
Wetlands are transitional environments between uplands and aquatic habitats like lakes, streams, and rivers, that hold water either permanently or seasonally (wetlands are not always wet!). Wetlands and streams are protected because they are a valuable asset to the environment and our communities. They provide:
A habitat for fish, wildlife, and plants
Water filtration, natural water quality improvement, and storage
Reduced flood damage
Shoreline erosion protection
Research and education opportunities
Economic benefits including food production, hunting, and fishing
What is involved in the process?
If you think you have a wetland or stream on your property, or just want to play it safe, it is always best to hire a professional to perform a wetland delineation and answer any questions you may have regarding wetland laws that apply to your project. It is extremely helpful to get a wetland scientist on board early in the planning or design process to either rule out wetlands onsite or determine the best path forward to avoid potentially expensive project redesigns.
The surveys and permits involved will depend on the location of, and other details specific to your project. Generally, the process will start with wetland delineation. The delineation must be performed by a wetland professional that will identify and classify any wetlands on the property. If it is determined that your project will not have any wetland impacts, you’re good to go! If your project will impact a wetland, though, several permits must be obtained. The location of your project will determine which regulations are applicable to your project and what permits must be obtained. Once the permitting process has been completed, you may be required to perform wetland mitigation - more on that later.
I may have wetlands on my property - where should I start?
What is a wetland delineation?
Wetland delineation identifies the location and boundaries of wetlands and streams as required under Federal and State regulatory guidelines. Wetland delineations are performed using the United States Army Corps of Engineers (USACE) 1987 Wetland Delineation Manual and the 2012 Regional Supplement Manuals and in some states, the 2015 Clean Water Rule. Both of these guidance documents provide wetland delineation methods, criteria, and field indicators. In New York State, the New York State Department of Environmental Conservation (NYSDEC) manual is also used where applicable.
If you have your property delineated, and no “Waters of the United States” (wetlands, streams, etc.) are present or your development will be located outside of the Waters, GREAT! – go ahead and start development plans. But if it is determined that your development plans will include areas that are in a wetland, stream, or a wetland buffer, it’s time to start the regulatory process.
Wetland delineations are required to obtain a permit for filling or disturbance of a wetland or stream, and the delineated boundaries must be approved by the applicable agency (i.e. NYSDEC or USACE). In some cases, local towns will also have a set of wetland laws that may apply to your proposed project. Your wetland scientist will be familiar with applicable laws and regulations.
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Who regulates wetlands?
Within New York State, wetlands are regulated by the NYSDEC, the federal government (USACE), or both. In addition, the Adirondack Park Agency (APA) has jurisdiction over projects within the Adirondack park limits. The APA regulates wetlands, streams, adjacent areas to certain rivers, critical environmental areas, and other specific land use projects.
What is involved in the regulatory process?
An approved JD is an official USACE or NYSDEC determination regarding wetland and stream boundaries on a site. The JD confirms that wetlands are either present or absent on a particular site. If wetlands are present on the site, the JD confirms that the USACE and/or NYSDEC agree with the boundaries set in place. For project planning purposes, it is important to note that an official JD determination is good for five years.
Once your wetlands have been identified, located, and classified, the appropriate agencies can be contacted to request a Jurisdictional Determination (JD). However, if you’re confident your project will not impact any wetlands, streams or regulated adjacent buffer areas and no permits will be needed, an official JD request may not be necessary.
NYSDEC regulates wetlands at least 12.4-acres or greater in size, but can also regulate smaller wetlands if they have been designated as wetlands of unusual local importance. The NYSDEC also regulates a 100-foot buffer surrounding these wetlands. The USACE regulates wetlands of all sizes that can be classified as “Jurisdictional Waters of the U.S.” per USACE regulations and guidelines. Federally regulated wetlands need to be identified, classified, and located by a wetland professional. Unlike the NYSDEC, there are no regulatory maps identifying wetlands regulated by USACE. It sounds complicated but your wetland professional will help you navigate through the process!
Once you have your approved JD, you will need to figure out if your development plans will affect any portion of the delineated wetlands, streams or wetland buffers on your property. There are several USACE Nationwide Permits that you can work under that allow for up to 1/10th of an acre of permanent fill or disturbance of a federally protected wetland. Once you cross over the 1/10th threshold, a Joint Permit Application (JPA) is required, and mitigation will also be mandatory.
Whether you are submitting your permit application to the USACE, NYSDEC or both, the JPA format can be used. This application may include several other agency reviews including, but not limited to: Protected Species Review (both State and Federal), Historical/Archaeological Review, and the appropriate State Environmental Quality Review (SEQR) Application Form.
Once you’ve reached the regulatory process, it is imperative to have a professional involved to make sure all of the key forms are filled out properly, the correct agencies are contacted, and the proper steps are followed.
What are my options for mitigation?
Can I do some site research myself?
Depending on your development plans and which agency may have jurisdiction over wetlands on your site, wetland mitigation may be required. Mitigation means that you need to compensate for the wetland losses occurring on your property. The USACE, the NYSDEC, or both can require mitigation, and each agency may approach mitigation options in a different way. There are different ways that wetland mitigation may be achieved. These include wetland creation, wetland restoration, restrictive covenants, or the purchase of wetland credits through an in-lieu fee program. Wetland mitigation is often costly and can have a time-consuming agency approval process.
The NYSDEC has an environmental resource mapper available online that shows the location of NYSDEC mapped wetlands and regulated streams. The National Wetland Inventory (NWI), prepared by the U.S. Fish and Wildlife Service also has an online mapper that may provide useful information on where smaller wetlands and streams may occur. Although the NWI mapper can provide useful information, a wetland could exist in an area where it’s not shown on the map. Therefore, the NWI maps are not considered regulatory maps.
The process can seem very confusing and complicated, and it is. That is why it is imperative to have a wetland professional guiding you through the process. The wetland professional will help your project succeed while adhering to applicable environmental regulations. Violations are costly and can result in project delays or cancellations. LaBella Associates provides a variety of focused wetland, ecology, permitting, and compliance services to meet the needs of our clients. Our staff’s extensive experience allows us to utilize a hands-on approach with the regulatory agencies and provide solutions that are compatible with client budgets.