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Protect Wetlands

Our Position: support
Bill Number: A2048/S2081
Sponsor: DiNapoli (MS)/Marcellino (MS)
Legislative Session: 2006

Status

Action Needed

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Background

January 28, 2005

Memorandum in Support

In Assembly 2048 by Assemblyman DiNapoli

Title: An Act to amend the environmental conservation law in relation to freshwater wetlands and repealing section 24-1305 of such law relating thereto.

Provisions:A.2048 proposes several important amendments to strengthen and improve New York’s freshwater wetland protection law. The bill amends the definition section of the law to allow the New York State Department of Environmental Conservation (DEC) to protect smaller wetlands. Existing law regulates wetlands that are 12.4 acres and larger. Smaller wetlands may be subject to regulation if these wetlands are deemed to be of “unusual local significance” by the commissioner of the DEC. A.2048 would make wetlands one acre or larger subject to regulation as well as smaller wetlands that are adjacent to water bodies, or those that are deemed to be of significant local importance by the DEC commissioner.

Another strengthening amendment proposed by the bill relates to the regulatory status of New York’s freshwater wetland maps. Currently, in order for wetlands to be subject to regulation under the law, wetlands have to meet a number of environmental criteria and be mapped on freshwater wetland maps prepared by the DEC. This bill would change the definition of wetland so that wetlands meeting the environmental criteria in the law would be subject to regulation.

Other changes proposed by the bill include eliminating the current four part wetland classification system and removing a provision of current law that grandfathers subdivisions and other activities in wetlands that were permitted prior to the passage of the law in 1975.

Finally the bill would require that permits issued by the DEC be included in the deed for the property. This provision will ensure that future prospective purchasers receive notice that structures on the property were constructed in wetlands.

Statement in Support

On January 9, 2001, in the Solid Waste Agency of Northern Cook County, or SWANCC, decision, the U.S. Supreme Court decided by a vote of 5-4 that the US Army Corps of Engineers (Corps) did not have authority under section 404 (the dredged and fill material permit program) of the Clean Water Act to assert jurisdiction over wetlands that were considered waters of the US solely due to their use by migratory birds. Prior to the SWANCC decision, the Corps asserted comprehensive regulatory jurisdiction over activities that threaten wetlands. After the SWANCC decision, the Corps limited the waters over which it asserts jurisdiction to waters of the US, defined as tidal, interstate and navigable water bodies and their adjacent wetlands. Wetlands are considered to be adjacent and subject to federal jurisdiction if they are connected by surface water to waters of the US. Wetlands that are not connected by surface water to waters of the US – so-called isolated wetlands - are no longer afforded federal protection.

A survey of Corps records conducted by the Natural Resources Defense Council in 2004 found 181 instances in which the Corp allowed unregulated destruction of wetlands. Since then both the Buffalo and New York District Offices of the Corps websites list a growing number of wetlands that are no longer afforded protection by the federal wetlands protection program.

The New York Wetland Protection Act (ECL Article 24) was passed by the legislature and signed into law in 1975. Article 24 establishes jurisdiction for the DEC to regulate land use in wetlands that are on the state wetlands map. The DEC is directed to place on the map, wetlands that are 12.4 acres or larger, or wetlands that are of unusual local significance. New York’s wetland protection program overlaps with the federal program for wetlands that are 12.4 acres or larger and in limited circumstances for smaller wetlands as well. Up until now, wetlands that fell below the 12.4 acre threshold were nearly universally regulated by the federal program. In the aftermath of the SWANCC decision, however, so-called isolated wetlands that fall below the 12.4 acre threshold will only be protected in those limited instances where the DEC has found that the wetland is of unusual local significance.

Protection of wetlands is a vital issue for New York’s environmental quality and quality of life. Wetlands perform a variety of important functions that benefit both people and the natural world. For example, wetlands soak up water run-off from rain and snow-melt, preventing floods. Studies by the U.S Fish and Wildlife Service show that an acre of wetland can store more than 1.5 million gallons of floodwater. A study by the Illinois State Water Survey found that destroying just 1% of a watershed’s wetlands increases total flood in the watershed volume by almost 7%. Clearly, filling wetlands increases the risk of flood. Protecting people from flooding is one compelling reason to protect wetlands.

Water that is held in wetlands percolates into the ground, replenishing aquifers that serve both private and municipal water systems. Wetlands also filter out contaminants, protecting water quality in streams, lakes and rivers. This function of wetlands is especially important for municipalities that rely on surface supplies of water, like New York City and Albany. Ducks, geese and other species of animals rely on wetlands as places to live and find food. In addition, the flood control and purification functions of wetlands help to maintain the water quality and flow in streams and rivers necessary to support healthy populations of fish. Protecting New York’s wetlands promotes flood control, water purification and habitat.

In addition, there are consumer protection purposes that are served by protecting wetlands. In numerous cases, New Yorkers who have purchased homes that have either been built in filled wetlands or adjacent to filled wetlands have suffered flooding and in some instances structural damage to their homes.

In order to preserve the valuable environmental and public safety functions performed by wetlands, New York must expand the jurisdiction of its wetland protection law to cover smaller wetlands.