New York Wetlands Affected by SWAANC Decision over Jurisdiction of Wetlands

New York Wetlands Affected by SWAANC Decision over Jurisdiction of Wetlands

In New York, around three-quarters of the state’s wetlands are located in the St. Lawrence Valley and the Adirondacks. They function as a giant sponge to reduce flooding. They also act like nature’s kidney, filtering pollutants out of water. The food and habitat they provide make the North Country one of the most important migratory flyways in North America. Wetlands under 12.4 acres (in NY) not immediately adjacent to navigable waterways will no longer be under the regulatory scope of the Army Corps of Engineers. If the ruling is applied that narrowly, Congress would have to amend the Clean Water Act or States and Local Governments would have to enact laws within their legislative bodies to fill the gaps.

On January 19, 2001, the General Council of EPA and the Chief Counsel of the Corps issued a memorandum providing the agencies’ legal interpretation of Clean Water Act jurisdiction in light of SWAANC (available at www.epa.gov/owow/wetlands/). The EPA and the Corps will need to provide additional guidance on the meaning of key terms in the SWAANC opinion such as “significant nexus”, “adjacent”, and “tributary”. These interpretations will likely be tested in the courts over the coming months and years.

New York wetlands 12.4 acres or greater, OR of unusual local importance are regulated by the NYS Department of Environmental Conservation. In some instances (very few) local governments have also enacted overlay districts or other zoning mechanisms to regulate wetlands. Vulnerable wetlands in NY include vernal pools, many forested wetlands, seeps and springs, and bogs. It is unknown at this time how many acres may be affected.

State and local wetland regulatory programs throughout the Nation focus primarily upon navigable waters, tributaries, and adjacent wetlands (See generally, Kulser, Jon et.al 1995, State Wetland Regulation; Status of Programs and Emerging Trends, Association of State Wetland Managers, Berne, N.Y. 12023). New York provides regulatory programs for isolated waters and freshwater wetlands that provide protection for isolated freshwater wetlands. Cooperative state/local regulatory efforts are achieved in cooperation with local governments. However, in New York, regulations are limited by wetland size (e.g., 12.4 acres in New York). New York will have to adopt an independent program in order to maintain a pre-SWANCC level of wetland protection.

Here is the latest SWANCC document, produced by ASWM. It is located at www.aswm.org/swancc/aswm-int.pdf. For more information in New York contact: Jennifer Brady-Connor from New York State Wetlands Forum, Inc. email – jennifer@aswm.org or call her at (518) 783-1322.

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