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Clean Water:
Budget Bill - Wetlands

Our Position: support
Bill Number: Budget Bill
Sponsor: Governor Pataki
Legislative Session: 2005

Status

Action Needed

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Background

New York’s Smaller Wetlands Need Urgent Protection

The Budget Proposal

Overview

The Sierra Club strongly support Governor Pataki’s proposal to protect wetlands in the 2005/2006 budget. 

We strongly support the Governor’s proposal to reinstitute tidal and freshwater wetlands permit application fees. We especially support depositing these fees in the conservation fund to support seven additional staff. These fees are an important step towards eliminating taxpayer subsidy of the cost of processing permit applications.

Currently New York law only protects wetlands that are 12.4 acres or larger and that are included on the state wetlands map. Since all other states in the Northeast protect wetlands regardless of size, the size threshold makes New York’s program the weakest in the region. Until recently, all state wetlands not on the state wetlands maps were protected by the federal wetlands protection program.

Background

In 2001 the federal government withdrew protection of “isolated” wetlands, or wetlands not connected by surface water to waters of the U.S. A 2004 survey by the Natural Resource Defense Council found over 180 wetlands across that state that have already been denied federal protection. In the eastern portion of the state, the New York District, the Army Corp of Engineers determined they lacked jurisdiction over 25% of the wetlands they evaluated.  In the western portion of the state, the Buffalo District, the Corps determined that they lacked jurisdiction in over 50% of wetlands evaluated. With so many wetlands in danger of destruction it is urgent that the State Legislature act quickly, in the course of passing the state budget, to expand New York’s wetland protection program to conserve all of the state’s wetlands.

 New York should not be the only Northeastern state to stand by while a class of the state’s smaller wetlands are destroyed. The Sierra Club does not believe that New Yorkers care less about safe drinking water, clean water for swimming, or fishing, or protection from flooding than our neighbors in Connecticut, Massachusetts, or Pennsylvania.

The Solution

There are two proposals before the legislature to close New York’s wetland protection loophole. The first is the Clean Water Protection/Flood Prevention Act (A.2048 by Assemblyman Thomas DiNapoli/S.2081 by Senator Carl Marcellino) would close the loophole byreduceing the size threshold for state regulation from 12.4 to one acre for most wetlands and for wetlands of “significant local importance” there would be no size threshold. The bill also ensures that wetland status is based on scientific criteria, not presence on the state wetlands map.

 The second is Governor Pataki’s proposal to close the loophole that he included in his budget proposal for 2005-2006. The Governor’s proposal adds “isolated wetlands” to the definition of wetlands subject to regulation under New York’s program. In order to be subject to regulation, wetlands would still have to be included on the state wetlands maps. However, the bill provides the DEC with authority to assert jurisdiction over wetlands that the agency intends to add to the map. Significantly, there are no size threshold limits for wetlands determined to be “isolated wetlands”.

We support closing the wetlands loophole now as part of the discussions over the budget using the best aspects of the two proposals.  Both of these proposals have their strengths and weaknesses.

The strength of A.2048/S.2081 is that it proposes to regulate all wetlands down to one acre. New York’s wetland protection program is in important ways superior to the Federal Wetland Protection Program. One significant difference is that the state program protects a one hundred foot buffer around the wetland while the federal program only regulates the wetland itself. Under the federal program you can build right up to the edge of the wetland without needing a permit, despite the fact that in most cases this action would result in severe degradation of the wetland. For this reason alone, establishing a more comprehensive state program would significantly benefit New York’s environment.  Establishing a comprehensive state wetland program also has the potential to simplify matters for the regulated community, by establishing the DEC as a one stop shop for wetland regulation.

Another strength of A.2048/S.2081 is that it would change the status of the state wetland maps from regulatory to educational. No other state requires that a wetland be mapped in order to be protected. It is probably not possible to accurately map every natural feature in the state. This should not mean that wetlands will not be protected. Recently a 19 acre wetland in the Town of Lysander was denied state protection even though it clearly exceeded the state minimum size threshold, simply because it was not on the state maps. In all likelihood there will always be wetlands like this that meet all other criteria for protection under the state law, but are overlooked in the mapping process.

One of the most significant strengths of Governor Pataki’s wetlands proposal is that it would extend state protection to isolated wetlands of any size. While A.2048/S.2081would allow the DEC to protect wetlands under an acre if they determined that the wetland was of significant local importance, this creates ambiguity that could be detrimental for landowners and wetlands alike. Land owners could not be certain that wetlands under one acre were subject to regulatory jurisdiction or not. Since the Federal Program currently regulates wetlands adjacent to waters of the U.S. regardless of size, if the Governor’s proposal becomes law the two programs together have the potential to comprehensively protect all of New York’s wetlands.

We urge the members of the Senate and Assembly conference committee to adopt a 2005/2006 budget that accomplishes these goals and safeguards the state’s wetlands.

While Sierra Club believes that a 2005/2006 New York State budget that includes either the provisions of the DiNapoli/Marcellino bill, or Governor Pataki’s proposal to close the current wetland loophole has the potential ensure that New York’s wetland resources have adequate protection, ideally the final law that is passed will incorporate the strengths of both proposals. It is important to note that the proposals in the legislature and in the Governor’s budget do not add any new regulation, they simply replace lost federal regulation. In fact, since the New York program exempts most farming activities from regulation while the federal program does not, some gaps will continue to exist if either of these proposals is passed into law.

The Value of Wetlands

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 snowmelt, preventing floods. Studies by the US Fish and Wildlife service show that an acre of wetland can store from one to five feet, or 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 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.

Flood control, water purification and habitat preservation can be accomplished through protecting New York’s wetlands. In addition, protecting wetlands protects consumers. 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.