This legislation will reclassify class C and D waterways as protected streams. The Business Council opposes this legislation because it undermines the value and intent of stream classification and will be a burden for the department of environmental conservation and landowners.
Environmental Conservation Law (ECL), Title 5 of Article 15, provides that waters of the state are protected on the basis of their classification. The class and standard designation is based on existing or expected best usage of each water or waterway segment.
- The classification AA or A is assigned to waters used as a source of drinking water.
- Classification B indicates a best usage for swimming and other contact recreation, but not for drinking water.
- Classification C is for waters supporting fisheries and suitable for non - contact activities.
- The lowest classification and standard is D.
Waters with classifications, A, B, and C may also have a standard of (t), indicating that it is able to support a trout population, or (ts) indicating that it supports trout spawning.
The DEC developed the current classification based on scientifically established criteria. Removing the distinction will undermine the special protections afforded to trout streams and drinking water sources. Additionally, removing the special protection will overly burden the DEC staff, forcing them to address many superfluous permits and resulting in an almost unenforceable situation.
If the DEC has not had the resources to update the classifications, those resources should be provided. The current classification system allows the public, landowners, and regulators to know what is permissible. Arbitrarily expanding the protections afforded to streams will catch many landowners by surprise, which could result in the loss of property value and/or unintended violation of the law.
Streams and small water bodies located in the course of a stream that are designated as C (T) or higher (i.e., C (TS), B, or A) are collectively referred to as "protected streams". A Protection of Waters Permit is required to physically disturb the bed or banks of any stream with a classification standard of C (T) or higher. Small ponds and lakes with a surface area of 10 acres or less, located within the course of a stream, are considered to be part of a stream and are also subject to regulation under the stream protection category of Protection of Waters.
Some examples of activities requiring this permit are:
- placement of structures in or across a stream (i.e., bridges, culverts or pipelines);
- fill placement for bank stabilization or to isolate a work area (i.e., rip-rap or coffer dams);
- excavations for gravel removal or as part of a construction activity;
- lowering stream banks to establish a stream crossing;
- utilization of equipment in a stream to remove debris or to assist in-stream construction.
New York State asserts sovereign ownership of the beds of “navigable waters” in the state. This ownership gives the state the right to control the bed and to ensure that navigable waterways shall forever remain public highways. A stream and any contiguous wetlands may be classified as “navigable” if it is large enough for operation of a canoe or larger boat.
Regardless of who owns a stream, various government entities retain police power over activities that may impact navigation, public safety, the environment, or the rights of other property owners. Under the current law owning a stream does not give the landowner the right to do whatever they please with it. Current law provides protections for many C and D streams.