by Roger Downs, Conservation Director
For decades, Sierra Club volunteers across New York have worked to protect the State’s remaining wetlands from unscrupulous developers. Every proposed fossil fuel pipeline, mega mall, golf course, or housing development that threatens to fill in a bog, swamp, marsh, or fen comes with its own tragic story of loss and regret. Rare species are extirpated, neighborhoods are flooded, water quality is compromised and ecosystems, that in some cases took thousands of years to develop, are gone in just one day with a bulldozer. Efforts by advocates to use New York’s Freshwater Wetlands Law have been for years stifled by regressive mapping protocols, bureaucratic red tape, and indifferent political leaders unwilling to allow the program to work as designed. Fortunately in 2022, the New York State Legislature and Governor Hochul came to agreement on significant reforms that are to go into effect January 1, 2025, pending an official state rulemaking.
Under the old state laws, a wetland was only subject to regulation if it was 12.4 acres or larger and delineated beforehand on an existing freshwater wetlands map prepared by the DEC after lengthy public comment. The problem was that most of these maps had not been updated in over 25 years, making them woefully incomplete, and the amendment process was time-consuming and overly burdensome in administrative costs. There were hundreds of thousands of acres of wetlands in high development areas of New York that were not on official maps but desperately required permitting protection.
Fortunately, the new laws will remove the jurisdictional barriers that these maps have created, and allow DEC to immediately regulate and protect wetlands if they meet the basic scientific definition of these critical habitat areas – featuring hydrophilic plants and hydric soils. The DEC estimates that these new reforms are the equivalent of adding 1 million acres of wetland under the state’s protection. That number just represents wetlands that are 12.4 acres and larger that were never officially mapped by the state. In 2028 that threshold will go down to 7.4 acres. The proposed reforms will also allow DEC to identify and protect smaller wetlands of unusual importance that were once encumbered by the state’s regressive mapping protocol and never officially recognized. This includes, for the first time, the inclusion of vernal pools (learn more about these rare habits in Liz Ahearn’s excellent article here).
But before the new law goes into effect, DEC must promulgate regulations that put a finer point on the statutory changes. The release of draft Wetlands regulations in the Summer of 2024 sparked a wave of public interest, both from the development community and advocates frustrated with the old program. While there appeared to be an even balance between opposition and support by the hundreds that spoke at the public hearings in September, the opposition was somewhat dominated by residents of Chautauqua Lake, who seemed to have been mislead by some poor legal advice and were convinced that the new regulations would transform their recreational waterway into an actual swamp. The bewildering protests perhaps missed the point of the new protections, which were to instead identify the mosaic of supporting natural infrastructure like the actual swamps, bogs and marshes in the lake’s watershed that serve as the “kidneys” to the lake system and play an instrumental role in reducing nutrient loading, turbidity, and the growth of harmful algal blooms that currently plagues Chautauqua. It seems if they can set aside irrational fears of losing their docks and speed boats, which will not be an outcome of the proposed rules, these new protections will benefit every lakeside resident.
For their part, land developers and construction companies, in typical fashion, plied the DEC with tales of woe—that greater restrictions on their ability to build in wetlands would hurt their bottom line. They argued that permitting protection of all wetlands found in urban areas, under the new “unusual importance” provisions, would drive development out of the cities and inject more sprawl into our rural areas. They argued that these new wetlands protections would hinder Governor Hochul’s affordable housing mandate to build 800,000 new homes in the next 10 years. But they failed to acknowledge the fundamental economic problems associated with the state losing more than 60% of NY’s historic wetlands and 99% of our urban wetlands. To be clear, building homes in wetland areas often constitutes a form of consumer fraud, where unsuspecting occupants are subject to shifting foundations, structural damage, flooded basements, and living spaces beset with mold and rot. This is not the kind of justice the governor envisioned when she wanted to improve housing stock for low-to-middle income New Yorkers.
It is these same developers who have used their political prowess to block reforms for the past 30 years, and yet none of them have or will take responsibility for the catastrophic flooding, harmful algal blooms and drinking water contamination that comes with unchecked wetlands destruction, or the astronomical costs our communities pay to clean up these messes that are rooted in their negligence.
That time is over. The new law and regulations will hopefully usher in an era of resiliency and restoration as protected wetlands will help us brace for the worst impacts of climate change, as long as Governor Hochul stays committed to the program’s implementation.
Perhaps the most important thing left to do before the new reforms are set in motion in 2025 is for the DEC to unveil the new high tech, digital interactive wetlands maps that will be the focal point of the permitting program moving forward. Without these innovative and predictive online tools, it will be difficult for the public to comprehend what these regulations will actually mean in practical terms, both to those who have fought to protect wetlands in the past, but have been frustrated by regressive mapping protocols, and those that want to engage in land development, or simply enjoy their camp on a lake, but do not understand how their property will be affected. The new digital maps should provide some clarity as to where we can find wetlands and what should be protected.
The Sierra Club is committed to making sure that we support this new revamped program, which proposes to double the wetlands acreage protected by New York State and projects a proportional increase in annual permit applications received by the Department. In order to achieve this, Governor Hochul is going to need to hire more biologists, hydrologists, permitting agents, and enforcement officers in 2025. An increase in staffing will ensure that implementation of the program is robust, that statutory and regulatory deadlines are met, and that applicants receive determinations and permits in a timely manner.
And we will also continue to stand by the advocates who are still trying to save specific wetlands across New York. Whether they are freshwater marshes on Staten Island, vernal pools on Long Island, wet clay meadows in the Hudson Valley, or Great Lakes coastal wetlands, we’ll be here to help citizens navigate these new tools of protection.
Let us know if you have a local wetland that is under threat and you are concerned about how to protect it!
Contact: roger.downs@sierraclub.org