New York State has set ambitious renewable energy goals, driving the need for a significant increase for environmental offsets across the state. The adoption of “Article 8” streamlines permitting processes for major projects, although smaller renewable energy projects are processed under traditional permitting methods.

Freshwater Wetlands: Mitigation Approaches

Under the Article 8 rules, compensatory wetland mitigation can occur offsite within the same watershed. However, projects outside this scope require onsite mitigation adjacent to State-regulated wetlands, necessitating intensive regulatory oversight. RES advocates for freshwater wetland mitigation banks as a more efficient and ecologically significant alternative.

Article 8 Regulations: Advancements and Challenges

The Article 8 regulations, spearheaded by the Office of Renewable Energy and Siting (ORES), have accelerated the pace of renewable energy projects in New York. However, challenges remain, particularly in providing clear guidance for mitigation proposals and outcomes, leading to permitting (and development) uncertainty and increased project costs.

Threatened and Endangered Species Mitigation

Species-based mitigation standards under Article 8 regulations lack clear regulatory guidance to calculate impacts and develop clear expectations for the corresponding offset projects. This leads to an ad hoc regulatory program, more development, and cost uncertainty for developers. It also places an outsized regulatory and cost burden on smaller-scale or community-scale projects. RES supports establishing the Threatened and Endangered Species Bank Fund to encourage the development of larger Net Conservation Benefit Plans for these smaller projects, but the current draft guidelines on the Fund lack clear expectations and outcomes, which affect applicability and cost.

Legislative Initiative

• New York Mitigation Watershed Bill 2025_Senate
• New York Mitigation Watershed Bill 2025_Assembly

📖 Further Reading

Regulations Implementing Section 94-c of the Executive Law

An Evaluation of the 2008 Rule

New York is updating its wetland rules to take jurisdiction over more wetland areas. The rulemaking alludes to a watershed approach for preserving aquatic resource functions but fails to implement consistency between existing Article 24 and federal/Article 8 regulations that would allow for watershed-based mitigation banks. Mitigation banking provides greater ecological uplift and investment certainty when implementing development projects that impact natural resources.

Leveraging the U.S. Geological Survey’s existing watershed and subbasin mapping, consistent with its existing ILF implementation, allows the state to adopt a watershed-based approach without additional costs or resources.

• Freshwater Wetlands: RES proposes modifications to existing regulations to facilitate freshwater wetland banking in New York, advocating for language changes within Article 24 and ORES guidelines to enhance clarity and promote efficiency.
• Threatened and Endangered Species: RES offers expertise to ensure the development of financially sustainable rules for the Threatened and Endangered Species Bank Fund, aiming to support species mitigation banking without unintended consequences.
• Article 24 Regulations: RES seeks to engage with NYSDEC to contribute to the evolving policy landscape surrounding wetland, stream, and endangered species mitigation, advocating for policies enabling mitigation banking projects.

By engaging with stakeholders and policymakers, RES aims to contribute to effective and sustainable ecological restoration practices in New York State.