New York State’s recently revised freshwater wetlands regulations expand the definition of protected wetlands, bringing previously unregulated areas under the state’s control. This creates potentially broader regulatory obligations on developers, including the potential need for coverage under a general or receipt of a site-specific wetland permit for a broader range of project sites. The expanded wetland regulations also have the potential to impede New York’s ambitious goals to increase renewable energy use under the Climate Leadership and Community Protection Act (“CLCPA”).
The Renewable Action Through Project Interconnection and Deployment Act (“the RAPID Act”) was passed to help achieve these renewable energy goals by streamlining and fast-tracking clean energy projects through structural reforms. However, because the draft regulations implementing the RAPID Act require renewable energy projects to comply with the freshwater wetlands regulations, the new requirements add complexity and uncertainty to wetland delineation, which has the potential to delay projects and raise costs, ultimately frustrating the purpose of the RAPID Act and New York’s clean energy goals.
To address this onerous requirement, the New York State Department of Environmental Conservation (“NYSDEC”) has proposed numerous general permits to streamline the process for specific projects and common construction activities, including community-scale solar projects. The draft community-scale solar energy installation general permit underwent a public comment period, which raised industry concerns; however, the responses to those comments and the final version of the permit are still pending. Notably, during the comment period, the solar industry expressed concerns about the state’s expanded definition of wetlands, citing it as a major reason why companies have ceased developing new projects in New York.
The revised freshwater wetlands regulation is currently facing legal challenges from developers and trade groups.[1] While these challenges are ongoing, developers must still comply with the requirements and should consult their NYSDEC regional office regarding renewable energy project siting, as well as seek legal counsel for any questions they may have. Hodgson Russ previously analyzed the wetland regulations’ potential impact on the solar industry and will continue to monitor the situation.
Background on the New Freshwater Wetlands Regulations
On December 31, 2024, the NYSDEC adopted final revisions to its freshwater wetland regulations under the Freshwater Wetlands Act, which took effect on January 1, 2025. The new regulations, 6 NYCRR Part 664, implement significant changes, including a revised classification system and criteria. The NYSDEC has expanded its jurisdiction through regulatory changes, now including wetlands outside of the previously mapped freshwater wetlands. In support of the regulations, NYSDEC Interim Commissioner Sean Mahar at the time of adoption emphasized the importance of “[p]rotecting freshwater wetlands [as it is critical] to the health of New York’s natural environment, helping protect communities from flooding through natural resiliency and creating habitats for fish and wildlife.”[2]
In broad terms, the latest regulation will eventually reduce the minimum size requirement for jurisdictional wetlands[3], apply an adjacent buffer zone to 100 feet, and include wetlands of “unusual importance” regardless of their size. “Unusual importance” includes wetlands of any size that possess any of the following 11 criteria:
- wetlands located in watersheds with significant flooding,
- wetlands in urban areas,
- wetlands containing rare plants,
- wetlands containing rare animals,
- class I wetlands,
- Unusual Local Importance wetlands under the previous statutory regime,
- vernal pools productive for amphibian breeding,
- wetlands in designated floodways,
- wetlands previously mapped under the previous statutory regime,
- wetlands of local or regional significance, and
- wetlands important for protection of New York State’s water quality.[4]
The new regulations are estimated to expand the NYSDEC’s jurisdiction to include approximately one million acres of previously unregulated wetlands. This regulatory shift changes how jurisdictional determinations and classifications are made, foregoing the previously used NYS Freshwater Wetlands Map, and relying on remote assessments using Geographic Information Systems (GIS) data. Wetlands are classified based on 34 characteristics into four categories, ranging from Class I to Class IV, with Class I representing the highest level of ecological importance. The class determines the type of construction activity permitted; for instance, in Class I, a large-scale solar project is largely restricted from entering the 100-foot adjacent buffer zone, while classes III and IV have fewer requirements for construction inside the buffer zone.
To ensure compliance with the new regulations, the NYSDEC recommends requesting a parcel jurisdictional determination (“Parcel JD”), which the NYSDEC must complete remotely within 90 days, to determine whether any regulated wetlands are on the property. Obtaining a Parcel JD is not required; however, noncompliance with freshwater wetlands law can result in violations and fees. If a jurisdictional wetland is present, a Project Jurisdictional Determination (“Project JD”) is required to assess whether the project impacts the wetland and necessitates an Article 24 freshwater wetland permit.
Implications of Freshwater Wetlands Regulations on Renewable Energy Development
The new wetland regulations strengthen natural resource protection but also pose risks to renewable energy development. Wetlands that were previously unaccounted for will now fall under the NYSDEC’s jurisdiction, requiring renewable energy developers to conduct additional studies and engage in agency consultations when siting solar farms and wind projects. This introduces the potential for complex layouts, site designs, and additional hurdles for renewable energy developers when dealing with newly designated wetlands on prospective project sites. At the same time, New York has ambitious goals under the CLCPA to increase renewable energy use and reduce greenhouse gases. The RAPID Act was passed to help meet these aggressive clean energy goals by streamlining and fast-tracking clean energy projects through structural reforms. The RAPID Act consolidates the environmental review, permitting, and siting of major renewable energy facilities and major electric transmission facilities under the authority of the Office of Renewable Energy Siting and Electric Transmission (“ORES”).
The proposed regulations under the RAPID Act (16 NYCRR § 1101) require large-scale renewable energy facilities to conduct wetland delineations using the rigorous criteria outlined in 6 NYCRR Part 664. Developers are encouraged to hold pre-application meetings with ORES and NYSDEC to discuss wetland delineation and other relevant issues. The process is front-loaded and integrated into the entire RAPID permitting process, creating a one-stop shop for all permitting needs. Nonetheless, due to the expansion of wetlands under state jurisdiction, the broader scope of review will likely lengthen the planning and permitting process, at best delaying projects and potentially cancellation of them.
NYSDEC’s attempt to Streamline the Permit Process—Community-Scale Solar Energy Installations General Permit (GP-0-25-004)
Under the new freshwater wetlands regulations, NYSDEC has proposed for activities that have a limited impact on the environment. These permits enable a faster and more efficient process, as they bypass the requirement to obtain an individual Article 24 freshwater wetland permit. One of the general permits proposed is the Community-Scale Solar Energy Installations General Permit (GP-0-25-004). This general permit, once finalized, would allow qualifying solar projects to carry out everyday development activities within or near wetlands under a pre-defined set of conditions rather than requiring a full, individualized wetlands permit application for each project.
The general permits would cover actions such as installing access roads, constructing buried or overhead power collection lines, clearing vegetation for solar panel arrays, and conducting required wetland mitigation – all with certain limitations to protect wetland functions. By standardizing permit conditions and pre-authorizing impact or necessary work, the general permit streamlines the permitting process and reduces uncertainty for developers. NYSDEC has also drafted general permits for utility right-of-way maintenance, minor stream crossings, and other recurring activities in wetlands. These proposed permits indicate a concerted effort at to prevent the new wetland regulations from bottlenecking energy projects.
The Current Status of Community-Scale Solar Energy Installations General Permit (GP-0-25-004)
NYSDEC released the draft permit on February 5, 2025, that commenced a public comment period, which ended on March 31, 2025. NYSDEC is now reviewing the comments and may make modifications before releasing the final version. As a few months have passed since the comment period closed, the publication of the final permit should be forthcoming.
During the public comment period, the New York Solar Energy Industries Association (“NYSEIA”), a distributed solar and energy storage trade association representing hundreds of community-scale solar companies in New York State, expressed concern regarding the jurisdictional expansion of the NYSDEC, citing it as a major reason companies have ceased new solar development in New York.[5] NYSEIA asked for the general permit provisions to be less restrictive, as they have the potential to undermine New York’s renewable energy and climate goals. NYSEIA’s also noted the need for clarification regarding the definition and coverage of “community-scale solar energy project,” as well as specific flexibility regarding access road expansion, interconnection lines, vegetation clearing and ground disturbance. Finally, NYSEIA’s submission noted that the NYSDEC should not impose stricter environmental requirements on community-scale solar projects than ORES does on utility-scale projects (i.e., large-scale projects of 25MW and above), especially since utility-scale projects occupy more space and have a greater impact.
Hodgson Russ’s Insights:
The freshwater wetlands regulations are currently facing legal challenges from a broad coalition, including statewide business associations, such as the Business Council of New York State, as well as individual developers. These businesses and developers are challenging NYSDEC’s rule on procedural grounds, alleging violations of the State Environmental Quality Review Act (“SEQRA”) and State Administrative Procedures Act (SAPA), while also claiming the regulations are unconstitutionally vague and “arbitrary and capricious.” What will happen in the courts leaves a degree of uncertainty, but for now, developers must comply with the new freshwater wetland regulations.
To ensure compliance, it is essential to be proactive about considering potential wetland impacts, even if the site appears to have no wetlands on the previous wetlands map. Starting consultation with knowledgeable parties early is imperative for renewable energy project siting to determine if the project is suitable and economically viable, depending on the wetland delineation and mitigation plans needed to comply with the new law.
Disclaimer:
This blog is a form of attorney advertising. Hodgson Russ LLP provides this information as a service to its clients and other readers for educational purposes only. Nothing in this blog should be construed as, or relied upon, as legal advice or as creating a lawyer-client relationship.
[1] https://www.bcnys.org/news/state-business-groups-builders-file-legal-challenge-against-new-yorks-revised-freshwater.
[2] DEC Finalizes Regulations to Protect Freshwater Wetlands - NYSDEC
[3] As of January 1, 2028, the size of a regulated wetland will be reduced from 12.4 to 7.4 acres, extending protection to smaller wetlands.
[4] https://govt.westlaw.com/nyreg/Document/I178109ab3d0811efbc82dce39fb9e128?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)
[5] https://www.nyseia.org/policydocuments/dec-solar-gp-comments.
[6] https://www.bcnys.org/news/state-business-groups-builders-file-legal-challenge-against-new-yorks-revised-freshwater.
