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New York Freshwater Wetlands Permit (13-NY-e)

In New York, a developer may need to obtain a Freshwater Wetlands permit for new hydroelectric facilities, hydroelectric transmission extension projects, and any other projects that may alter the State’s freshwater wetlands or adjacent areas. The New York State Department of Environmental Conservation (DEC) administers the Freshwater Wetlands Permit Program, in accordance with Freshwater Wetlands Act (New York) and the New York Code, Rules and Regulations, 6 CRR-NY Part 663, to preserve and protect the benefits that freshwater wetlands provide. Freshwater wetlands provide a valuable resource necessary for flood control; surface and ground water protection; wildlife habitat; open space; water resources; recreational, educational and research opportunities; and aesthetic values. 6 CRR-NY 663.1; New York – Environmental Conservation Law § 24-0107; Department of Environmental Conservation – Freshwater Wetlands Permits (New York); Freshwater Wetlands Program: A Guide for Applicants, at 2.

The DEC assigns a classification of I, II, III or IV to freshwater wetlands regulated under the Freshwater Wetlands Act based on the wetland’s respective functions, values and benefits. Class I Wetlands provide the most critical benefits to the state and are subject to the most stringent standards. For more information on wetland classifications, see 6 CRR-NY 663.5.

Recognizing that certain human activities may adversely affect the delicate ecological balance of important freshwater wetlands areas, the DEC enforces the Freshwater Wetlands Regulatory Program with the goals of:

  1. Preserving, protecting, and enhancing the present and potential values of freshwater wetlands;
  2. Protecting the public health and welfare; and
  3. Giving due consideration to the reasonable economic and social development of the State.
6 CRR-NY 663.1; Department of Environmental Conservation – Freshwater Wetlands Permits (New York); Freshwater Wetlands Program: A Guide for Applicants, at 2.


Freshwater Wetlands Permit Process

13-NY-e.1 to 13-NY-e.2 – Will the Proposed Project Be Located in a Protected Freshwater Wetland or Adjacent Area?

“Freshwater wetlands” generally include lands and submerged lands (commonly called marshes, swamps, sloughs, bogs and flats) that support aquatic or semi-aquatic vegetation and have an area of at least 12.4 acres or, if smaller, have unusual local importance with respect to flood and storm control, wildlife habitat, protection of subsurface water resources, recreational uses, pollution treatment, erosion control, educational and scientific research resources, aesthetic appreciation, or as sources of nutrients, nursery grounds or sanctuaries for freshwater fish. New York – Environmental Conservation Law § 24-0107(1); 6 CRR-NY 663.2; Freshwater Wetlands Program: A Guide for Applicants, at 2.

The New York State Department of Environmental Conservation (DEC) regulates activities in certain freshwater wetlands and adjacent areas generally extending 100 feet outside of a freshwater wetland boundary. However, if necessary to protect and preserve a regulated wetland, the (DEC) may establish an adjacent area extending beyond 100 feet outside the freshwater wetland boundary. 6 CRR-NY 663.2.

Not all freshwater wetlands are protected by the DEC. Before submitting an application for a Freshwater Wetlands Permit, the developer should review the State’s official wetland maps, which identify wetlands qualifying for protection under the Freshwater Wetlands Act. Wetlands maps are on file and available for inspection at the DEC regional offices. Freshwater Wetlands Program: A Guide for Applicants, at 2.

Contact information for the DEC’s regional offices is available at the agency’s New York – Department of Environmental Conservation Regional Office Directory website. If the proposed project will not be located in a protected freshwater wetland or adjacent area, a Freshwater Wetlands Permit is not required.

13-NY-e.3 – Will the Proposed Project Impact the Natural Values of a Freshwater Wetland or Adjacent Area?

The DEC regulates almost any activity that may adversely impact the natural values of a freshwater wetland or adjacent area. Certain activities, such as the routine maintenance of existing functional structures, are exempt from the Freshwater Wetlands Act permitting requirements. 6 CRR-NY 663.3(o); Freshwater Wetlands Program: A Guide for Applicants However, a hydropower developer must obtain a Freshwater Wetlands Permit for, among other things, the following activities:

  1. Constructing buildings, roadways, bulkheads, dikes, or dams;
  2. Filling, excavating, or grading;
  3. Modifying, expanding or extensively restoring existing structures;
  4. Draining;
  5. Clearing trees and eliminating other vegetation; and/or
  6. Applying pesticides.

New York – Environmental Conservation Law § 24-0511; 6 CRR-NY 663.3(o); Freshwater Wetlands Program: A Guide for Applicants, at 3-4.

For a more detailed list of activities for which a Freshwater Wetlands Permit is required, see 6 CRR-NY 663.4.

If unsure about whether or not a Freshwater Wetlands Permit is required for the proposed project, the developer should contact the appropriate regional permit administrator. 6 CRR-NY 663.4.

13-NY-e.4 to 13-NY-e.5 – Schedule Pre-Application Conference

If the proposed hydropower project may adversely impact the natural values of a regulated freshwater wetland or adjacent area, the developer should schedule a pre-application conference with the appropriate DEC regional Environmental Permits Office early on in the planning process. Contact information for the DEC regional Environmental Permits Offices is available at the agency’s Department of Environmental Conservation – Regional Permit Administrators (New York) website.

The pre-application conference provides the developer with an opportunity to explain the proposed project to the DEC staff (and other potentially involved agencies) and to obtain preliminary answers to questions regarding:

  • Freshwater wetland and adjacent area boundaries;
  • Freshwater Wetlands Permit application procedures; and
  • Standards for issuing a Freshwater Wetlands Permit.

Freshwater Wetlands Program: A Guide for Applicants, at 4.

13-NY-e.6 – Freshwater Wetlands Permit Application

To apply for a Freshwater Wetlands Permit, the developer must submit an application to the DEC or the local government (see below). Generally, the developer’s Freshwater Wetlands Permit Application must include the following:

  1. A completed Joint Application Form;
  2. A location map showing the precise location of the project by reference to known landmarks such as streets and public buildings;
  3. Project plans, drawn to a scale of 1” = 50’ or larger, including topography (if appropriate) and at a contour interval prescribed by the DEC regional office, and showing:
    • The existing conditions and work to be performed;
    • The wetlands boundary, as verified by DEC staff;
    • The extent of all fill, excavation, grading, disturbance and clearing of vegetation;
    • The dimensions of all proposed buildings or structures; and
    • The location of any septic systems.
  1. Recent and clear color photographs of various views of the project site, mounted on a separate sheet and labeled with the date, the view shown, and the compass direction faced when taking the photograph;
  2. Information necessary for the requirements of the State Historic Preservation Act (SHPA);
  3. The land owner’s written permission to make the application and develop the project, if the applicant is not the owner of the land on which the project will be developed; and
  4. Any other information which the DEC staff determines is necessary to adequately review and evaluate the developer’s application.

Freshwater Wetlands Program: A Guide for Applicants, at 5-6.

13-NY-e.7 to 13-NY-e.9 – Does the Local Government Have Freshwater Wetlands Regulating Authority Over the Proposed Project Area?

Generally, a developer must submit its application for a Freshwater Wetlands Permit to the appropriate DEC regional permit administrator. 6 CRR-NY 663.3.

However, if the local government has assumed the freshwater wetlands regulating authority for that area, and the DEC commissioner does not have superseding authority over the wetland area, the developer must file the application with the local government. The local government reviews and processes the developer’s application in accordance with local laws and regulations. 6 CRR-NY 663.3.

13-NY-e.10 to 13-NY-e.11 — Review Application Materials for Completeness

Within 15 days of receiving the developer’s Freshwater Wetlands Permit Application, the DEC reviews the application materials and determines whether the developer has supplied all of the information necessary for the DEC to begin review. If the application is incomplete, the DEC will send the developer a notice, identifying the additional information required.

13-NY-e.12 – Declare Application Complete and Begin Application Review Process

When the DEC receives all of the necessary information, the DEC declares the application complete and begins the application review process. Freshwater Wetlands Program: A Guide for Applicants, at 6.

13-NY-e.13 – Is the Proposed Project Considered a Major Project or a Minor Project?

Minor Projects

Minor projects in wetlands include:

  1. In-kind and in-place reconstruction of existing functional bulkheads and similar structures;
  2. Restoration, reconstruction, or modification of existing functional structures or facilities which involve the temporary disturbance of less than 50 square meters of ground surface, excluding drainage ditches;
  3. Installation of a dock, pier, or wharf built on floats or open-work supports and having a top surface area of 20 square meters or less;
  4. Installation of utility service to an individual residence or installation of utilities to a structure from an existing distribution facility, not involving major modifications or construction activities in the wetland;
  5. Selective cutting, but not elimination or destruction of vegetation, which does not significantly affect the function and benefits of the wetland;
  6. Dredging of less than 400 cubic meters to maintain presently existing navigational channels;
  7. Routine beach regrading and cleaning;
  8. Drilling of a water well for a single-family dwelling;
  9. Application of a pesticide to the grounds of a private residence by the residence owner; and
  10. Drilling test wells for sampling and scientific studies, but not for mineral exploration.

Minor projects in adjacent areas include:

  1. In-kind and in-place reconstruction of existing functional bulkheads and similar structures;
  2. Restoration, reconstruction, or modification of existing functional structures or facilities which involve the temporary disturbance of less than 50 square meters of ground surface;
  3. Installation of a dock, pier, or wharf built on floats or open-work supports and having a top surface area of 20 square meters or less;
  4. Building a deck adjoining an existing dwelling;
  5. Expansion or substantial modification of existing functional structures, excluding drainage ditches;
  6. Installation of utilities to a structure from an existing distribution facility, not involving major modifications or construction activities in the wetland;
  7. Removal or breaching of newly constructed beaver dams to restore water levels;
  8. Selective cutting, but not elimination or destruction of vegetation, which does not significantly affect the benefits of the wetland;
  9. Clear cutting of trees;
  10. Dredging of less than 400 cubic meters to maintain presently existing navigational channels;
  11. Routine beach regrading and cleaning;
  12. Drilling of a water well for a single-family dwelling;
  13. Constructing a driveway to an existing residence;
  14. Application of a pesticide to the grounds of a private residence by the residence owner;
  15. Application of a pesticide pursuant to a pesticide permit issued by the DEC;
  16. Intensive, organized, and repetitive use of all-terrain vehicles, air and motor boats, and snowmobiles; and
  17. Installation of fencing.

Major Projects

All regulated activities not listed above are considered major projects. Examples of major projects include, among other things:

  1. New construction of a residence, commercial facility, industrial facility or any related structure in a wetland or within 100 feet of the wetlands;
  2. Expansion of or substantial modification of existing structures or facilities in a wetland including residential, commercial, and industrial buildings or sanitary disposal systems within 100 feet of the wetlands;
  3. Draining, except as part of an agricultural activity;
  4. Clear cutting of trees or vegetation in a wetland;
  5. Filling;
  6. Dredging, except as listed in the minor project categories;
  7. Road construction;
  8. Construction of new or replacement of non-functional dams, docks, or bulkheads;
  9. Application or storage of pesticides, except in an adjacent area as described above for minor projects.

Freshwater Wetlands Permits: Is this Project Major or Minor?.

13-NY-e.14 - Publish Public Notice of Application

If the proposed project is considered to be a major project, the DEC must publish notice of the developer’s Freshwater Wetlands Permit application in the Environmental Notice Bulletin no later than ten days after the DEC determines that the application is complete. The developer must also publish notice of the application in a designated local newspaper no later than fifteen days after the DEC determines that the application is complete. New York – Environmental Conservation Law § 70-0109; Freshwater Wetlands Permits: Is this Project Major or Minor?.

13-NY-e.15 - Will the DEC Hold a Public Hearing?

After evaluating the developer’s application and any comments received from DEC staff, other state agencies or members of the public, the DEC may, at its discretion, hold a public hearing prior to making a permitting decision. If the DEC holds a public hearing, the DEC must notify the developer and all persons who filed comments on the project. The DEC decides whether to conduct a public hearing based on whether DEC’s evaluation of the application or comments received raise significant issues regarding the findings or determinations the DEC is required to make. New York – Environmental Conservation Law § 70-0119.

13-NY-e.16 – Provide Notice of Public Hearing

If the DEC elects to hold a public hearing, the DEC must notify the developer and all persons who filed comments on the project within 60 calendar days of determining that the developer’s application is complete. The DEC must also publish notice of the hearing in both the Environmental Notice Bulletin and a designated local newspaper. § 70-0119.

13-NY-e.17 – Hold Public Hearing

The DEC must conduct the hearing within 90 calendar days of determining that the developer’s application is complete. At the public meeting, interested parties may ask questions and provide oral and written comments regarding the developer’s permit application. New York – Environmental Conservation Law § 70-0119.

13-NY-e.18 – Review Application Materials and Public Comments

The DEC reviews the developer’s application (and public comments, if applicable) in order to determine whether the proposed project is compatible with the following freshwater wetlands compatibility tests:

Classes I, II, III, and IV For wetland Classes I, II, III, and IV, the proposed activity must be compatible with the public health and welfare, be the only practicable alternative that could accomplish the applicant’s objectives and have no practicable alternative on a site that is not a freshwater wetland or adjacent area.

Classes I, II, and III For wetland Classes I, II, and III, the proposed activity must minimize degradation to, or loss of, any part of the wetland or its adjacent area and must minimize any adverse impacts on the functions and benefits that the wetland provides.

Class IV For wetland Class IV, the proposed activity must make a reasonable effort to minimize degradation to, or loss of, any part of the wetland or its adjacent area. 6 CRR-NY 663.5.

13-NY-e.19 to 13-NY-e.20 – Is the Project Compatible With the Freshwater Wetlands Compatibility Tests?

If the DEC finds that the proposed project is not compatible with the freshwater wetlands compatibility tests—or if the project has substantial impacts on the wetland—the DEC will apply the following weighing standards:

  1. Alternatives – the developer must demonstrate that the proposed project is the only physically or economically feasible alternative for accomplishing the developer’s objectives. There must be no physically or economically feasible alternative on a site that is not a freshwater wetland or its adjacent area.
  2. Avoid or Reduce Impacts – the developer must demonstrate that the proposed activity minimizes impacts to or loss of the wetland or its adjacent area, including impacts to the functions, values and benefits of the wetlands. This may include an examination of alternative project layouts, designs and pollution control features for the project.
  3. Economic and Social Need – the developer’s level of need is weighed against the public burden and the level of net losses or impacts to the wetland. The DEC must strike a reasonable balance in order to issue a permit. In general, the more important the wetland functions, values and benefits, and the greater the potential loss or reduction of these attributes, the greater the amount of economic and social need the developer must demonstrate and document to prevail in obtaining a permit.
  4. Mitigation – even after evaluating every reasonable alternative, the developer may still be left with some unavoidable impacts or losses to wetlands. If these impacts cannot be adequately avoided or reduced, the developer may propose some means to offset the impacts or to replace their lost benefits. Ultimately, the acceptability of the developer’s mitigation plan will depend on how likely it is to effectively replace or enhance the specific wetland functions, values and benefits lost due to the proposed project.

If the developer meets all of the weighing standards and provides an acceptable mitigation plan that adequately compensates for any unavoidable impacts to the wetland, the DEC may issue a Freshwater Wetlands Permit. 6 CRR-NY 663.5; Freshwater Wetlands Program: A Guide for Applicants, at 6.

13-NY-e.21 to 13-NY-e.23 – Issue Final Determination

After completing its review, the DEC determines whether to approve or deny the developer’s application for a Freshwater Wetlands Permit and notifies the developer of its determination. For a minor project, the DEC generally makes a decision within 45 days of determining that the developer’s application is complete. For a major project, the DEC’s decision may take up to 90 days after the completeness determination. These time frames may be suspended if the DEC and the developer mutually agree to suspend the time frames; if an enforcement action has been started against the developer; or if another agency is leading the environmental review of the proposed project and has not yet competed the environmental review process. Freshwater Wetlands Program: A Guide for Applicants, at 7.

The DEC may:

  1. Grant a permit approving the manner and extent of alterations to freshwater wetland resources of the State as proposed by the developer;
  2. Grant a permit with conditions as necessary to protect the health, safety, or welfare of the people of the state and its natural resources; or
  3. Deny the permit.

Freshwater Wetlands Program: A Guide for Applicants, at 11.

13-NY-e.24 – Freshwater Wetlands Permit

If the DEC determines that the proposed project meets the requirements of the Freshwater Wetlands Act and approves the developer’s application, the DEC will issue a Freshwater Wetlands Permit for the proposed project. The DEC may include any mitigation efforts considered during the application review process as a condition on the developer’s permit, and may require the developer to complete mitigation prior to initiating the proposed project. 6 CRR-NY 663.5; Freshwater Wetlands Program: A Guide for Applicants, at 9-11.

13-NY-e.25 to 13-NY-e.27 – Does the Developer Disagree With the DEC’s Determination?

If the developer disagrees with the DEC’s determination to deny the Freshwater Wetlands Permit, the developer may appeal the DEC’s determination to the freshwater appeals board or to a court of competent jurisdiction in accordance with the provisions of title 11 of the Freshwater Wetlands Act. See New York – Environmental Conservation Law § 24-1101 et seq. The 6 CRR-NY 661.19.




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Division of Environmental Permits Contact
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