NYS Freshwater Wetlands Act Due for a Makeover

Save The Great South Bay, 501(c)3 is a proud signatory on the letter below urging leadership to protect our remaining wetlands and enact strong reforms to New York State’s Freshwater Wetlands Act in the One House Budget Proposals. The letter was written and submitted by New York Audubon with our sincere thanks for their advocacy efforts.

February 19, 2022

Dear Leader Stewart-Cousins, Speaker Heastie, and Chairmen Kaminsky and Englebright,

Over the past two decades, New York State’s environmental community has advocated for expanding and strengthening New York State’s authority to regulate freshwater wetlands. Despite these efforts, over a million acres of freshwater wetlands are currently excluded from the State’s Freshwater Wetlands regulatory program, and the U.S. Environmental Protection Agency estimates that New York State has already lost 60% of its historic wetlands. We must protect our remaining wetlands, and the undersigned groups urge you to enact strong reforms to New York State’s Freshwater Wetlands Act in your One House Budget Proposals.

Our remaining swamps, marshes, bogs, fens, and wet clay meadows provide critical ecosystem services for communities across the state, including the ability to mitigate flooding impacts, filter surface waters of pollutants, recharge drinking water, sequester greenhouse gasses, and provide critical habitat to vulnerable plants and wildlife. Despite all of these benefits, our freshwater wetlands are in crisis. Human development, invasive species, climate change, and pollution are continuing to damage our wetlands and impair the ecosystem services they provide.

Much of this damage is attributable to gaping holes in federal and state freshwater wetlands protections, which must be fixed before we lose even more of these critical resources and all of the ecosystem services that they provide. Currently, the State has the authority to regulate freshwater wetlands 12.4 acres or greater in size or of unusual local importance. However, each of those wetlands must be

delineated on jurisdictional maps held by the State. This is problematic because most of the jurisdictional maps have not been updated in over twenty-five years due to outdated statutory protocols for approving map amendments – leaving more than one million acres of wetlands unmapped and without protection.

New York State must amend the Freshwater Wetlands Act to ensure that all wetlands are subject to oversight by the DEC regardless of size and remove the DEC’s requirement to maintain and use jurisdictional maps for perming decisions. The Legislature can ensure these protections by including the following provisions in their One House Budget Proposals:

• Eliminating Regulatory Maps and Arbitrary Thresholds. All wetlands need protection regardless of their size or whether they are on regulatory maps. The law should be amended to eliminate the regulatory nature of the maps, and the DEC should have perming authority for all wetlands greater than 12.4 acres in size and discretionary perming authority for smaller wetlands that are unusually important. The maps should instead be converted to an informational resource and made available on DEC’s website, where they can be updated with new information vetted by the DEC on a more timely basis.
• Unusual Importance. Small wetlands are just as important as big ones, and the DEC should have the discretion to protect small wetlands that are of “unusual importance” due to their ecological features and the ecosystem services they provide. A framework that provides meaningful protection for wetlands that are less than 12.4 acres and of “unusual importance” should include: (i) wetlands in a watershed that has experienced significant flooding; (ii) urban wetlands, (iii) wetlands that provide habitat for rare plant species or vulnerable wildlife, (iv) wetlands currently classified as Class I wetlands by the DEC, (v) wetlands important to the state’s water quality, and (vi) wetlands that were previously classified as having “unusual local importance.”
• Eliminating the Map Amendment Process. The map amendment process can be me-consuming and overly burdened with administrative costs. Updating the maps takes a minimum of 18 months and costs approximately $100,000 per watershed due to mandatory certified mailings that must be sent to all adjacent landowners. We must eliminate these certified mailings and update the maps on a timely basis so landowners know where freshwater wetlands are located.
• Rebuttable Presumption. The law should establish that all freshwater wetlands are presumed to be subject to regulation and perming until proven otherwise, which will help to ensure the DEC has proper oversight to enforce regulated activities. A rebuttal may be made by presenting information to the DEC that establishes that the area is not a freshwater wetland.
• Maintaining 100 Foot Buffers. The law currently requires that each wetland has a 100-foot buffer. Wetlands buffers are critically important and provide wildlife with critical habitat and corridors for migration, reduce human disturbances, prevent erosion, help maintain water quality, and minimize the spread of invasive or aggressive plant species. We must maintain these buffers to protect the ecological integrity of protected wetlands.

It is critically important that we amend the law this year. In late January, the Supreme Court of the United States announced that it will hear an appeal in Sacke v. EPA, which will allow the Justices to potentially redefine what is considered a wetland pursuant to the federal Clean Water Act.

The petitioners have asked the Court to establish that only “relatively permanent” waters be subject to federal oversight and perming, which would eliminate federal protections for isolated wetlands and ephemeral or intermittent streams. If that unthinkable scenario occurred, the responsibility for protecting non-regulatory federal wetlands would fall to the States. In New York, this would mean that the over 1.4 million acres of freshwater wetlands that are 12.4 acres or greater in size and included on the State’s maps would still be protected by the DEC – but – the future of the additional one million acres of unmapped wetlands would be uncertain at best.

Updating the law this year is also important because of the Governor’s proposal to add $1 billion to the “Clean Water, Clean Air, and Green Jobs Environmental Bond Act.” The Bond Act will provide increased funding for restoring and enhancing our wetlands, which is an essential component of successful climate change adaptation and resiliency strategies. The Save NYS Wetlands Coalition strongly supports this increase, but undertaking this critical work at the landscape level will be difficult to achieve unless the DEC is given more flexibility to protect wetlands as they are integrated into resiliency plans.

For these reasons, we urge the Legislature to include reforms to the New York State Freshwater Wetlands Regulatory program in their One House Budget proposals. These reforms would end decades of struggle, where the State’s hands have been ed by the very laws meant to protect our wetlands. It’s me to end the loss of our wetlands and allow the DEC to fulfill its mission to protect our environment.

Thank you for your consideration of this request and your ongoing support of New York State’s environment.

Sincerely,

Cc: Governor Kathy Hochul Commissioner Basil Seggos