Will new state wetlands regulations impact the Adirondacks? 

2022 Freshwater Wetlands Act took effect Jan. 1: What it means for New York’s environmental protections inside and outside the Adirondack Park

By Zachary Matson

Wetlands outside the Adirondack Park will be more stringently protected under new regulations that went into effect Jan. 1, while Adirondack Park Agency staff continues to review whether a 2022 law will affect wetlands rules within the Blue Line.

The state’s Freshwater Wetlands Act, which lawmakers amended in April 2022 and set the changes to take effect Jan. 1, establishes two separate oversight regimes: one for the Adirondack Park and one for the rest of the state. APA oversees wetlands within the park, and DEC regulates wetlands outside the park. 

While DEC undertook an extensive process to solicit public input and adopt new regulations since the law was amended, it’s not clear if APA sees a similar need to revamp its rules as a result of the statutory changes.

Environmental advocates have called for more clarity from the park agency and are citing the lack of a public process as another example of what they see as the agency’s failure to meet its responsibilities. 

Chris Amato, conservation director and counsel at Protect the Adirondacks, said the agency should be communicating to the public about what the statutory changes mean for its wetlands oversight. 

In a recent commentary for the Adirondack Almanack, Amato wrote that APA has repeatedly failed to respond to letters and inquiries from advocacy groups and “seems determined to conceal its regulatory activities and decision-making from public scrutiny.”  

“It’s deplorable and irresponsible,” Amato said of APA’s handling of changes to the wetlands law in an interview. “This agency has an obligation to protect wetlands in the park and keep its regulations up to date with statutory changes. There is simply no excuse.” 

The legislative push to adopt more protective wetlands rules largely focused on wetlands outside the park, where wetlands of at least 12.4 acres now fall under DEC jurisdiction, while regulatory thresholds within the park have long been far lower. Wetlands of just an acre in size or those of any size directly adjacent to a waterbody fall under existing regulatory protections within the park.

Greater protection for vernal pools

Though, it’s possible the DEC regulations are now more protective of at least some types of wetland habitats. Vernal pools, depressions that fill with water in the spring and provide critical reproductive habitat for amphibians, were added to the law for special protection. Regulated activities within vernal pools with documented amphibian reproduction will now require permits, under the regulations that apply outside the park. APA’s current wetlands regulations do not address vernal pools.   

APA in response to questions said its staff was analyzing the 2022 legislative amendments to determine what, if any, regulatory changes are necessary.  

“The APA has a dedicated team that is currently reviewing its wetlands regulations based on recent amendments to the statutes,” an agency spokesperson said. 

The agency does “consider impacts to known vernal pools as part of its review of jurisdictional subdivision and development proposals,” according to the spokesperson, and is considering whether it needs to expand its wetlands regulations to cover vernal pools as part of its review.

Calls for greater oversight

Advocacy groups are also upset with how the agency is implementing its current wetlands protections. Protect is suing the agency over its handling of a marina project, where after an appellate division court annulled an APA permit and ruled the agency failed to follow its wetlands regulations, agency staff determined the project was altered enough that developers no longer needed a wetlands permit. 

John Sheehan, spokesperson for the Adirondack Council, said the nonprofit was also concerned about variances APA has granted for projects within 100 feet of a wetlands boundary and how it enforced violations to the agency’s rules. 

“We’re not calling for a smaller acreage (to be regulated), but we are calling for better care and more vigilance,” Sheehan said. 

The Adirondack Council joined Protect, the Adirondack Mountain Club and a handful of other advocacy groups in a September letter calling on APA to revisit its wetlands regulations in light of the 2022 amendments. Amato said the agency never responded. 

Changes to statewide rules 

DEC’s new regulations, which do not apply within the park, mark a significant change to how the state’s freshwater wetlands are protected. 

The overhaul trades old wetlands maps for a new jurisdictional determination and wetlands delineation process. The wetlands regulations will lower the regulatory threshold to 7.4 acres on Jan. 1, 2028. Smaller wetlands are regulated if they meet criteria that would categorize them as of “unusual importance,” including productive vernal pools, wetlands in flood-prone watersheds and urban wetlands. 

“Wetlands are biodiversity hotspots,” Kirsta Spohr, a DEC outreach specialist said during a January webinar on the new regulations. “They are as important as coral reefs and rainforests, there is that much going on in them.”   

Roy Jacobson Jr., who heads DEC’s wetlands regulatory program, during the webinar said with remote sensing technology the agency can more effectively determine whether a parcel contains regulated wetlands. He said DEC added five positions to manage the new regulations and acknowledged the update represents “a big change.” 

Amato was laudatory of DEC’s new regulations and the process to develop them.

“The DEC process was exemplary of an agency taking its responsibility seriously in light of amendments made to the statute,” Amato said. “I would hope the park agency would look at those regulations if and when it gets around to updating its own regulations.”