Developing New York’s Wetlands: The Continuing Battle between Developers and Conservationists

Developing New York’s Wetlands: The Continuing Battle between Developers and Conservationists

By Karen De Vito

According to New York State law, the New York State Department of Environmental Conservation (DEC) has the authority to regulate both tidal and freshwater wetlands. For wetlands that fall within the definition of a regulated wetland in New York, any landowner or developer interested in developing in or around certain wetlands must first apply for a permit with the DEC. In order to facilitate public notice and comment on permit applications, the DEC posts all applications on the on-line Environmental Notice Bulletin (ENB). The ENB is published on-line every Wednesday and lists permit applicants by region. Each week there are numerous permit applications ranging from Title V air permits, to mined land reclamation permits, and freshwater wetland permits to excavate and fill in navigable waters permits. Although the effectiveness of the ENB has been questioned by a number of environmental groups across New York State, it does in fact provide a record of the trend in increased development in and around New York State’s wetlands.

Take for example the number of wetland permits that have been applied for on the November 12, 2003 edition of the ENB. Out of the 24 applicants listed on the ENB, 16 of them proposed to alter either a tidal or freshwater wetland to some degree. The proposed projects range from the construction of two-story single-family homes within the regulated adjacent area of a freshwater wetland, to the construction of a highway interchange within the 100-foot adjacent area. The fact that the number of applicants applying for a wetland permit comprises more than half of the total applicants is quite significant, especially when attempting to quantify the environmental consequences of human activity within New York State.

A comparison of the November 12, 2003 edition of the ENB against the same weekly edition in previous years, paints another interesting, if not alarming picture. The November 13, 2002 edition of the ENB showed 32 permit applicants, with 15 of them applying for some type of wetlands permit. That number represents slightly less than half the total and is less than the percentage from 2003. In the November 14, 2001 edition of the ENB, the percentage of applicants applying for a wetland permit compared to total applicants was again slightly less than half (11/24). The numbers for the November 12, 2003 edition of the ENB alone are enough to show that development of wetlands and their buffers constitute a substantial portion of all of the permit applications reviewed by the DEC, even though there are at least 10 permit programs run by the department. By reviewing the applicants for a similar week over the past three years, it is also noteworthy that during the current year, the number of total applicants has increased, as well as the percentage of wetlands applications compared to all other types of applications.

Although these numbers are revealing, they do not represent the total impact development has had on New York State’s wetlands. If the DEC does not act as the lead agency for the environmental review process, then often the town board does, and many proposed developments may become reality under those circumstances as well. A prime example is the proposal to rezone a 36-acre tract that includes wetlands to make way for a housing/retail complex in Chili, NY. Local residents near the 36-acre parcel assert that the development would destroy a natural resource, eliminate a buffer between houses and neighboring shopping plaza, and worsen a flooding problem in the area.

Disagreement over the characteristics of the area – whether or not the wetlands are isolated and what the actual size of the wetland is (larger or smaller than 12.4 acres) has also brought into question which agencies have jurisdiction over the wetland and the potential to develop it. Additionally, the potential Clean Water Act rollbacks occurring as a result of the Solid Waste Agency of Northern Cook County (SWANNC) court decision may mean less protection for the wetlands at the federal level. Many of New York’s wetlands and small streams are intermittent, with 5,075 miles of New York’s 52,337 total stream mileage classified as intermittent. These streams are the water bodies most at risk of losing federal protection.

In response to federal interpretation of the SWANNC decision, a new wetlands bill, A.7905 /S.4480, was introduced during the 2003 legislative session. The bill, among other things, would lower the threshold of wetlands protected under state law from 12.4 acres to one acre. The bill remained in the Environmental Conservation Committees of both the Senate and Assembly at the end of the 2003 session.

 

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