New York Waters and Wetlands

Why are Waters Defined Differently by State?

In the U.S., the Clean Water Act (CWA) protects waters. Jurisdictional Waters of the U.S. (WOTUS) are given extensive protection under this act. However, this act provides vague definitions for these waters, leading to the ambiguity of interpretations of these waters. States have added additional definitions to waters to gain clarity and protect waters that do not fall under the jurisdiction of the CWA as interpreted by different administrations. As climate change has become more prevalent, the interpretation of current regulations and the addition of new regulations created by the CWA has consistently changed.

Additionally, water use and needs vary by state—the different biogeographic regions in each state impact primary water sources and regulations are regionally specific. Protected waters serve as a habitat for many fish and other species that vary significantly by state. This variety of life and water use creates the need for state-specific regulations.

Who Regulates New York Waters?

New York Department of Environmental Conservation

The New York State Department of Environmental Conservation (NYSDEC) provides environmental protection. It protects New York’s natural resources by enforcing environmental laws and regulations to prevent, abate, and control water, land, and air pollution. The department is divided into different programs, including the Endangered Species Program and the Division of Water, that handle conservation-related functions for waters and aquatic wildlife.

Protected Streams and Rivers of New York

New York is home to over 70,000 miles of streams and rivers. Many large rivers such as the Hudson River and East River serve as crucial sources of flood protection, water storage, and habitats for the surrounding communities and species. These fresh water rivers flow into downstream water bodies, such as the New York Bay and New York Harbor in the North Atlantic. The quality of these rivers impacts local and downstream communities alike. Due to this, many regulations exist for New York Streams and rivers. Additional regulations and management programs exist for local waters, such as the Newtown Creek Alliance and the Bronx River Alliance.

Hudson River Protection

In 1987, the Hudson River Estuary Management Act created the Hudson River Estuary Program. The NYSDEC administered the program to protect the Hudson estuary and the watershed adjacent to the estuary. This extensive protection spans miles from Troy’s federal dam to NYC’s Verrazono-Narrows Bridge. The Hudson River Estuary Agenda directs this program’s vision to achieve the following benefits for the public through their work:

• Clean water

• Resilient communities

• A clean estuarine ecosystem

• Protection of wildlife, fish, and their habitats

• Maintaining the Hudson river’s existing scenery

• Expand the possibilities for river access, education, and recreation

Additional organizations, such as Riverkeeper, work to keep the Hudson River clean. They aim to maintain this major source of drinking water for New Yorkers and this home to a vast ecosystem. The Hudson River has continued to receive support for organizations such as this, especially after many sightings of dead Bunker Fish along this Rivershore near Manhattan occurred. This damage to the ecosystem was a result of heat and contaminants, creating incredibly harmful water quality. Instances such as this reinforce regulations for rivers in the state.

The Ohio River Valley Water Sanitation Commission

This act, established in 1948, is a compact between Kentucky, Illinois, Indiana, New York, Pennsylvania, Ohio, Virginia, and West Virginia. This interstate agreement establishes a commission to monitor and regulate the quality of the rivers, streams, waterways, and waters of the Ohio River Basin. The commission informs and aids in policy for regulating these waters.

Wild Scenic and Recreational Rivers Act

The Wild Scenic and Recreational Rivers Act protect New York State rivers with scenic, ecological, recreational, historic, and scientific values. The policy aims to preserve designated rivers in a free-flowing condition by preventing improvident development and use.

Long Term Control Plan

Major waterways of focus are the Flushing River or more commonly known as Flushing Creek and the Gowanus Canal. The Flushing River source flows through the NYC borough, Queens, and empties into the East River and Flushing Bay. This river serves as a transport for wastewater. The Gowanus Canal was initially constructed in the later 19th century as a wastewater transport. Its modern-day form resembles this initial construction, flowing near Brooklyn into the Owls Head Wastewater Resource Recovery Facilities (treatment plants) or the Red Hook. However, this canal receives little circulation, which has resulted in high levels of pollution. Both water systems are part of the DEPs Long Term Control Plan (LTCP) to better comply with CWA water quality standards.

Protection of Waters Regulatory Program

What is the Protection of Waters Regulatory Program?

The NYSDEC formed the Protection of Waters Regulatory Program to protect New York waters. The Protection of Waters Regulatory Program puts in place and upholds regulations that:

• Aid in protecting, preserving, and enhancing existing and possible water resource values

• Establish public health rules that limit risks such as discharging waste and sewage into NY waters

• Align with New York’s financial and social progress goals

Certain waters of New York are protected based on their classification. Those classifications are:

• Classification of AA or A - Assigned to waters used as a source of drinking water

• Classification B - Indicates the best usage for swimming and other contact recreation

• Classification C - For waters supporting fisheries and suitable for non-contact activities

• Classification D - The lowest classification and standard

According to NYSDEC, A, B, and C classified waters may also yield a “T” standard, indicating that it might aid in a trout population’s survival, or TS, signifying that the water may be a spawning resource.  Streams and small water bodies located in the course of a stream with a classification of AA, A, or B, or C with a standard of (T) or (TS) are referred to as "protected streams" and are subject to the stream protection provisions of the Protection of Waters regulations. 

Permits for Protection of Waters Regulation Program

According to NYSDEC, the following require a Protection of Waters permit:

• Disturbing the bed or banks of a stream with a classification of AA, A, or B, or with a classification of C with a standard of (T) or (TS)

• Constructing, reconstructing, repairing, or modifying dams and water impounding structures that permanently or temporarily impound water due to a structure placed across a watercourse or overland drainage way or which receive water from an external source such as drainage diversion or pumping of groundwater.

• Constructing, reconstructing, or repairing docks or platforms and installing moorings on, in, or above navigable waters to create docking facilities, mooring areas, or to facilitate other activities

• Excavating or placing fill in navigable waters of the state, below the mean high water level, including adjacent and contiguous marshes and wetlands

Per Section 401 of the Clean Water Act, a Water Quality Certification (WQS) from the NYSDEC, along with a federal permit, is required for any activity that may result in any discharge into WOTUS to ensure that the proposed action will comply with New York's water quality standards.

How Do Protected New York Waters Impact Land Developers?

Protected waters fall under many federal, state, and local regulations. For instance, New York City waters may have different regulations than those of Long Island. Some of these waters can be challenging to identify, as in the case of temporary waters (ephemeral), and have consequences later in development. Delaying or incorrectly identifying waters can result in project delays and expensive recovery efforts.

How to Identify Protected New York Waters

Protected waters fall under many federal, state, and local regulations. These waters can be challenging to identify, as in the case of temporary waters, and have consequences later in development. Delaying or incorrectly identifying waters can result in project delays and expensive recovery efforts.

Additionally, New York water serves as a habitat for many protected species, such as fish and vegetation. Due to this, developments will be subject to other federal and state regulations, such as the Endangered Species Act. Additionally, more restrictive rules may apply for individual wetlands, resulting in project failure. Proper environmental due diligence aids in the identification of these waters and navigations of regulations.

Environmental Consultants

Environmental consultants are experts trained to survey sites for potential environmental impacts. These consultants are trained in federal and local waters regulations for environmental protection. The consultant can recommend necessary permits and steps to ensure environmental compliance if they find an environmental risk-such as protected water. This traditional process is completed manually by an environmental consultant over weeks or months.

Environmental Resource Mapper

The NYSDEC Environmental Resource Mapper identifies some of the state’s natural resources and environmental features that are state or federally protected or of conservation concern. Although users can find links to more information, permitting requirements, and contacts for more detailed queries through this map, the Environmental Resources Mapper does not show all the waterways regulated by NYSDEC or the required permits.

National Hydrography Dataset

This data depicts the nation's water drainage network. Software platforms use this data, which is available for download by the public. As the USFWS source, this tool does not outline permits needed, the jurisdiction of waters, and other regulations. Though these diligence tools are helpful, one of the easiest ways to identify wetlands is to use environmental due diligence software like Transect.

Transect Protected Waters Map

Transect uses machine learning and integrated datasets, such as the National Hydrography Dataset, to automate the mapping of WOTUS. This software uses prior and current data about water locations to assess a specified region. The software provides the area and likelihood of regulated water appearing on a site in the jurisdiction of the water and includes a corresponding confidence level in its occurrence. Additionally, Transect will also provide a site-specific list of permits and next steps required to comply with federal, state, and local laws. This mapping tool can aid in selecting the right site for a project by generating this report in minutes.

Transect Software helps land developers discover these waters on any given parcel of land.