The proposed legislation would provide Department of Environmental Conservation (DEC) with additional authority to regulate wetlands regardless of size and would remove the requirement that DEC must map significant wetlands. This legislation would increase uncertainty for homeowners, landowners, businesses, and the regulator. The Business Council of New York State opposes this legislation as it will increase regulatory uncertainty while not addressing the currently mystifying and overlapping wetlands regulatory structure.
The Business Council is not opposed to updating New York’s wetlands statute but it should be done recognizing the current protections that are afforded wetlands, streams, and water quality and with an intent to provide clarity to the current overlapping and muddled approach to defining and regulating wetlands and their buffer.
In New York State Article 24 of the Environmental Conservation Law, provides the DEC and the Adirondack Park Agency (APA) with the authority to regulate freshwater wetlands in the state. The law provides protections for wetlands of unusual local importance, wetlands in the Adirondack Park, wetlands larger than 12.4 acres (5 hectares) in size, and smaller wetlands if they have free interchange of flow with surface water.
In addition pursuant to Title 5 of ECL Article 24, a municipality is authorized to administer the state program in lieu of DEC. Furthermore, a municipality may enact its own wetlands regulation system, pursuant to municipal enabling legislation, if the local program is “at least as protective of freshwater wetlands” as the state regulatory program.
Furthermore, the modification of a wetland also requires a permit from DEC under the Stream Protection Act, Title 5 of ECL Article 15.
Tidal wetlands, which are commonly encountered in downstate New York, are subject to a similar regulatory scheme set forth at ECL Article 25, and 6 N.Y.C.R.R. Parts 660 and 661.
The proposed legislation would undermine the value of the State Freshwater wetland maps and would increase uncertainty for homeowners and businesses alike. Under current law the DEC must map wetlands and provide notice to the owners of the affected wetlands, provide an opportunity for a public hearing on the accuracy of the maps, make appropriate changes to the maps, and file the maps with all local governments.
The existing process provides current landowners and future property owners with notice and a process to evaluate the effects that the delineation of a wetland will have on the market value of a specific property.
Importantly, the wetland mapping process also includes a classification for wetlands. Classification categories range from Class I wetlands, which provide the most benefits, to Class IV wetlands, which provide the fewest. Obtaining a permit to alter a Class I wetland is more difficult than a permit to alter a Class IV wetland. Thus, wetland classifications are important to the regulatory process and are subject to public comment during the mapping process. Removing the mapping process removes the opportunity for the public to review and learn a specific wetland’s class.
It should be noted, that under current law, permits from DEC are required for “regulated activities” within the wetlands, or the 100 foot buffer strip around them. ECL §24-0701(2). New York regulates a broader scope of activities than under the federal program, including drainage, dredging, excavation, removal of soil, filling, erecting structures, and polluting. The proposal to reduce the size of wetlands does not address the size of the buffer. The buffer would extend 100 feet in all directions from the wetland resulting in the need to acquire a permit for considerable more land than the wetland covers.
The Business Council is not opposed to updating New York’s wetlands statute but it should be done recognizing the current protections that are afforded wetlands by State and Federal laws, regulations, and guidance and with an intent to provide clarity to the current overlapping and muddled State and Federal laws and regulations.