New regs could squeeze development
ALBANY — The state Department of Environmental Conservation will close public comments on Thursday, Sept. 19, as it continues efforts to expand its regulation of wetlands to an additional one million acres of currently unprotected wetland habitat.
The proposed rule, set to take effect in January 2025, clarifies the jurisdictional status of smaller wetlands of “unusual importance” that meet specific criteria under the newly amended act. Additionally, the draft regulations provide a revised wetlands classification system and outline a process for the public to request and appeal jurisdictional determinations.
Advocates quickly expressed support, suggesting ways their local town boards could further conservation efforts. Opponents, however, argue that the proposal could hinder development and exacerbate rising real estate prices.
The new rules will approximately double the acreage of state-regulated wetlands in New York by 2028, as the minimum area for state jurisdiction will be reduced from 12.4 acres to 7.4 acres.
The proposed regulations also extend the upland adjacent areas within which the DEC can regulate activities, increasing from 100 feet to 300 feet for nutrient-poor wetlands, and up to 800 feet for vernal pools identified by the department as productive for amphibian breeding.
“Wetlands provide economic and ecological benefits to all of New York’s communities by improving natural resiliency and helping protect against flooding, particularly in response to climate change, while providing essential habitat for fish and wildlife,” Interim DEC Commissioner Sean Mahar said in July when the proposal was first released for public review.
Dave Barnett, a member of the citizens group Bethlehem Tomorrow, addressed Bethlehem’s town board, advocating for adopting local wetlands regulations. He emphasized the importance of having detailed state regulations in place before implementing local regulations but expressed skepticism about relying solely on the state’s regulatory review process.
“My concern is directed to the concept that local is best,” he said. “Even if the state regulations do a fair job of protecting Bethlehem’s wetlands resources, our planning board and our town staff are the best boots on the ground for reviewing government proposals.”
Barnett urged the town board to commit to developing a revised town code to protect wetlands in 2025, establishing a coordinated review process with the DEC to streamline development review and effectively implement the Comprehensive Plan’s recommendations.
Barnett’s suggestion mirrors what the Town of Colonie has established through its review process. In Colonie, the Significant Environmental Areas Management Appeals Board reviews projects in environmentally sensitive areas, adding an extra layer of scrutiny beyond state regulations.
A recent Albany Business Review article featured a prominent land-use attorney and local developer who explained how the new regulations could reduce development potential and drive up property prices. The report cited an example in the Town of Bethlehem, where the proposed changes threaten plans for a senior housing development.
A 72-acre parcel off Blessing Road was previously approved for a 53-lot subdivision, but it was never built. An LLC that includes Frank McCloskey, a partner at Hershberg & Hershberg, purchased the land intending to build a senior citizen apartment complex. Under the proposed regulations, most of the land is classified as wetlands, leaving only 11 acres available for development. While this may be sufficient, the project could be derailed if a state wetlands permit, required for the access road and utility line construction, is denied.
New York’s Freshwater Wetlands Act, originally enacted in 1975, was modernized as part of the 2022-2023 Enacted State Budget. Freshwater wetlands, which include marshes, swamps, sloughs, and bogs, support aquatic or semi-aquatic vegetation.
